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NORTH CAROLINA 

REGISTER 



VOLUME 11 • ISSUE 12 • Pages 959 - 1037 
September 16, 1996 



IN THIS ISSUE 

Environment, Health, and Natural Resources 

Human Resources 

Revenue 

Transportation 

List of Rules Codified 

Rules Review Commission 

Contested Case Decisions 



PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



•jfSai I 



SEP 



'm 



KATHRINE R. EVERETT ( 
LAW LIBRARY I 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 






I 



I 



NORTH CAROLINA ADMINISTRATIVE DECISIONS 

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NORTH CAROLINA 




Volume 1 1 , Issue 1 2 
Pages 959 - 1 037 



IN THIS ISSUE 



RULE-MAKING PROCEEDINGS 
Environment, Health, and Natural Resources 

Wildlife Resources Commission 959 



II. PROPOSED RULES 

Environment, Health, and Natural Resources 

Coastal Resources Commission 981 - 983 

Environmental Management Commission 973 - 979 

Health Services 987-998 

Parks and Recreation, Division of 985 - 987 

Soil and Water Conservation Commission 979 - 981 

Wildlife Resources Commission 983 - 985 

Human Resources 

Department 966 - 967 

Social Services Commission 960 - 973 

Revenue 

Sales and Use Tax 998 - 1003 



September 16,1 996 



This issue contains documents officially 
filed through August 23, 1996. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

FO Drawer 27447 

Raleigh, NC 27611-7447 

r919) 733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

James R. Scarcella Sr., Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Teresa Kilpatrick, Editorial Assistant 

Jean Shirley, Editorial Assistant 
Linda Richardson, Editorial Assistant 



III. 



IV. 



TEMPORARY RULES 

Environment, Health, and Natural Resources 

Soil and Water Conservation Commission . . 



1004- 1005 
1006- 1010 



APPROVED RULES 

Environment, Health, and Natural Resources 

Wildlife Resources and Water Safety 
Transportation 

Highways, Division of 

Public Transportation & Rail Division 



V. LIST OF RULES CODIFIED 1011 - 1012 

VI. RULES REVIEW COMMISSION 1013-1017 

VII. CONTESTED CASE DECISIONS 

Index to AU Decisions 1018- 1026 

Text of Selected Decisions 

95 ABC 0917 1027- 1036 

VIII. CUMULATIVE INDEX 1-26 



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on 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency 
must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a ride. 
Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register under the 
section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making Proceedings 
and can be found in the Register under the section heading of Rule-making Agendas. Statuton- reference: G.S. 150B-2L2. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT, HEALTH, 
AND NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE COMMISSION 

'\Totice of Rule-making Proceedings is hereby given by the North Carolina Wildlife Commission in accordance with G.S. 
J. V 150B-21.2. The agency shall subsequently publish in the Register the text of the nde(s) it proposes to adopt as a result of 
this notice of nde-making proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 15A NCAC lOB .0116 

Authority for the rule-making: G.S. 113-134; 1 13-1 29.1(a): 113-279(b) 

Statement of the Subject Matter: Permitted archeiy equipment. 

Reason for Proposed Action: To modify Broadhead regulations. 

Comment Procedures: The record m;// open for receipt of written comments from September 16. 1996 through November 15. 
1996. Such written comments must be delivered or mailed to the North Carolina Wildlife Resources Commission. 512 N. 
Salisbury Street. Raleigh. NC 27604-1188. 



11:12 NORTH CAROLINA REGISTER September 16, 1996 959 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published 
a Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from 
the publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required 
comment period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). 
Statutory reference: G.S. 150B-21.2. 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Social Services Commission intends 
to amend rules cited as 10 NCAC 41 P .0002, .0005 - 
.0006, .0008 - .0012: 49A .0002; 49B .0202, .0310, .0502. 
Notice of Rule-making Proceedings was published in the 
Register on July 15, 1996. 

Proposed Effective Date: April 1, 1997 

A Public Hearing will be conducted at 10:00 a.m. on 
October 17, 1996 at the Albemarle Building, Room 943-2, 
325 North Salisbury Street, Raleigh, NC 27603. 

Reason for Proposed Action: 

10 NCAC 41P .0002, .0005 - .0006, .0008 - .0012 - The 
1995 General Assembly found it in the public interest to 
clarify the judicial process for adoptions, to promote the 
integrity and finality of adoptions, and to encourage 
prompt, conclusive dispositions of adoption proceedings. 
Towards this end, SB 159 was ratified. This action in- 
cluded rewriting many of the adoption laws contained in 
G.S. 48. The amendments proposed to 10 NCAC 41 P will 
provide for implementation of those changes. 
10 NCAC 49A .0002, 49B .0202, .0310, .0502 - The 
amendments are necessary to implement prospective budget- 
ing and quarterly reporting in the AFDC Program. During 
its 1995 Session, the General Assembly eliminated State 
Supplemental Payments for families who are adversely 
affected by retrospective budgeting. This amendment also 
provides consistency and conformity between the AFDC and 
Food Stamp Programs in reporting requirements and 
consideration of income. 

Comment Procedures: Comments may be presented in 
writing anytime before or at the public hearing, or orally at 
the hearing. Tune limits for oral remarks may be imposed 
by the Commission Chairman. Any person may request 
copies of these rules by calling or writing to Shamese 
Ransome, APA Coordinator , Social Services Commission, 
NC Division of Social Services, 325 North Salisbury Street, 
Raleigh, NC 27603. Phone: 919/733-3055. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules 
do not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 



CHAPTER 41 - CHILDREN'S SERVICES 

SUBCHAPTER 41? - CHILD-PLACING 
AGENCIES: ADOPTION 

.0002 ORGANIZATION AND ADMINISTRATION 

(a) Persons licensed or seeking license to provide 
adoption services shall comply with administrative and 
organizational requirements of 10 NCAC 41N, Chapter 48 
of the General Statutes of North Carolina, and G.S. 
110-57.1 et seq. 

(b) Persons licensed or seeking license to provide 
adoption services shall meet staffing regulations set forth in 
10 NCAC 410, except that the executive director employed 
after the effective date of these regulations shall have a 
masters degree in social work or related area of study from 
an accredited school, and at least four years of experience 
in a child-placement agency, at least two of which must 
have been in administration. 

(c) The caseload of social workers providing adoption 
services must be limited to allow for the required contacts 
with biological parents and families, children, adoptive 
families and collateral parties. A case is defined as any of 
the following: 

(1) an expectant parent or parents receiving problem 
pregnancy services from the agency prior to the 
child's birth and roloaso relinquishment for 
adoption; 

(2) biological parents receiving services from the 
agency following roloaao relinquishment of the 
child to the agency for adoption; 

(3) a child or sibling group to be placed together 
referred to the agency for adoptive placement 
from another licensed or authorized child-placing 
agency and for whom an adoption home is being 
sought and considered; 

(4) a child, or siblings, together with biological 
parents for as long as the legal parent and child 
relationship exists; 

(5) a child, or siblings for whom the goals for adop- 
tion are the same, following r e loaso relinquish- 
ment for adoption; 

(6) a single person or married couple applying for or 
licensed to provide foster care for children re- 
leased for adoption to the agency; 

(7) a single person or married couple applying for or 
approved for adoptive placement of a child or 
children; 

(8) a child or sibling group and adoptive parents after 



960 



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PROPOSED RULES 



placement occurs; and 
(9) biological parents, or adoptive parents and 
adopted child, or adopt adoptee following entry 
of the final order for adoption decree of adoption . 

Authority G.S. 131D-10.3; 13 ID- 10. 5; 143B-153; 48-3-204. 

.0005 PLACEMENT SERVICES TO FAMILIES 
AND CHILDREN 

(a) Persons licensed or seeking license to provide 
adoption services shall comply with regulations set forth in 
10 NCAC 410. 

(b) Additionally, those persons providing as part of their 
adoption services program problem pregnancy services 
shall: 

(1) respect the client's prerogative for choice of 
alternatives to the problem pregnancy; 

(2) assure the cUents of confidential handling of and 
restricted access to the case record; 

(3) offer alternate plans of care for the child and give 
supportive services or make appropriate referrals 
to other resources, should the client elect to keep 
the child in the family instead of releasing the 
child for adoption; and 

(4) assist the client in obtaining maternity home care 
during her pregnancy, if desired and appropriate. 

(c) The agency shall help those parents reaching the 
decision to release relinquish their children to the agency 
for adoptive placement to have a thorough understanding of 
the meaning of adoption and its potential impact on the 
child's and their lives. The agency may notify the parent 
when a placement has occurred and when an adoption 
decree is issued. 

(d) At the point a parent executes the writt e n r e l e a se , 
s urr o nder, and g e n e ral oonoent to adopt, relinquishment for 
adoption, the agency shall ascertain that the parent has a 
thorough understanding of the effects of this action and of 
the time period allowed for revocation of the r e l e as e , 
surrend e r, and g e n e ral consent to adoption, relinquishment 
for adoption. When the agency has received the parent's 
roloaso, — surronder, — asd — general — consent — te — adoption, 
relinquishment for adoption, the executive director or 
administrator must indicate acceptance of the par e nt's 
release relinquishment document by signing the appropriate 
form for this purpose. A copy of the parent's roloaso, 
surrender, and gen e ral consent to adoption relinquishment 
for adoption and of the agency's acceptance must be given 
to the parent. The Director or Administrator shall desig- 
nate the agency's supervisor of adoptions or the adoptions 
social worker handling the case to accept the par e nt's 
r e l e as e , surr e nd e r, and g e n e ral cons e nt to adoption relin- 
quishment for adoption in the event the Director or Admin- 
istrator will not be available to perform this task in person. 
An agency may acquire legal and physical custody of a 
minor for purposes of adoptive placement only by means of 
a relinquishment pursuant to G.S. 48, Article \^ Part 1_ or 
by terminating the rights and duties of a parent or guardian 



of the minor. 

(e) In addition to providing services to the child in 
compliance with 10 NCAC 410, agencies providing 
adoption services shall involve a child in the selection of an 
adoptive home and in preparation for adoptive placement, 
as is appropriate to the age of the child. 

Authority G.S. 13 ID- 10. 5: 1438-153; 48-3-204. 

.0006 ADOPTIVE HOME RECRUITMENT 

The agency shall have a written plan for on-going 
recruitment of adoptive homes for the children it places or 
plans to place for adoption. The plan must include re- 
sources to be used, time-related goals for applicant recruit- 
ment, and any limitations or restrictions that may be 
inherent to its program. The plan must indicate designated 
staff and funding sources for implementation of the plan. 
Agencies shall have a plan which actively recruits homes of 
the same race or ethnic category as that of the children it 
serves. A child's race and ethnic background must bo 
oonsidorod — m — dotormin jag — the — most — suitable — adoptive 
plac e m e nt, but th e ag e ncy shall not prohibit the placement 
of a child for adoption with p e rsons of a difforont rac e or 
ethnic category'. An agency may consider the cultural. 



ethnic, or racial background of the child and the capacity of 
the prospective adoptive parents to meet the needs of a 
child as one of the number of factors used to determine the 
best interest of the child but shall not delay or deny place- 
ment of a child for adoption solely on the basis of race, 
color, or national origin of the adoptive parent or the child. 

Authority G.S. 13 ID- 10. 5; 143B-153; 48-3-204. 

.0008 PREPLACEMENT ASSESSMENT 

(a) The agency shall conduct an adoptiv e study with it s 
applicanta. a preplacement assessment within 90 days after 
the request has been accepted. TTie study assessment 
process must include at least one offic e visit with th e 
adoptiv e applioonto, on e homo visit, and personal interview, 
and separate face-to-face mterviews with each member of 
the household above six years of age. The s tudy assess- 
ment process must be a joint effort of the adoption agency 
and the applicants to determine the kind of child the 
applicants can best parent. Any study assessment that was 
completed one year or more before placement of a child 
occurs must be updated to include current information about 
the family. Th e updat e d s tudy shall focus on applicabl e 
items in Paragraph (b) of this Rulo whoro chongo could bo 
oxpcctod to havo oocurrcd. Physical examinations of family 
members must be current to within 12 months of the 
updat e d study assessment . 

(b) The agency shall study assess the following areas and 
shall record the information in the adoptive applicants" 
record: 

(1) the applicants' motivation for adoption; reasons 
for wanting to adopt; 

(2) the strengths and ' . vcolcnossos needs of each 



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PROPOSED RULES 



member of the household; 

(3) the attitudes and feelings of the family, extended 
family, and significant others involved with the 
family toward accepting adoptive children, and 
parenting children not bom to them; 

(4) the attitudes of the applicants toward the biologi- 
cal parents and in regard to the reasons the child 
is in need of adoption; 

(5) the applicants" attitudes toward child behavior 
and discipline; 

(6) the applicants' plan for discussing adoption with 
the child; 

(7) the emotional stability and maturity of applicants; 

(8) the applicants" ability to cope with problems, 
stress, frustrations, crises, and loss; 

(9) the applicants" ability to give and receive affec- 
tion; 

(10) the applicants' child-caring skills and willingness 
to acquire additional skills needed for the child's 
development; 

(11) the applicants' ability to provide for the child's 
physical and emotional needs; 

(12) the applicants' record of criminal convictions; 
whether the applicant has ever been convicted of 
a crime other than a minor traffic violation; 

(13) the adjustm e nt strengths and needs of birth 
children or previously adopted children, including 
school reports, if applicable ; 

(14) report of a physical examination by a licensed 
m e dical provid e r for m e mb e rs of th e adoptiv e 
family living in th e hous e hold within six months 
of the study that verifies no communicable dis 
ease, spooific illness, or disabilities that would 
int e rf e r e with the family's abiliti e s to par e nt a 
child pos e a dir e ct thr e at to a child — which may 
pose a significant risk of transmission in the 
homo; the applicant's physical and mental health, 
including any addiction to alcohol or drugs; 

(15) the applicants' ability to provid e financially for 
the child or children to bo adopted with or with 
out agency financial assistance through adoption 
subsidy; current financial information provided 
by the applicant, including property and income; 

(16) the applicants' personal character references; 

(19) the plan for child care if parents work; em4 

(20) recommendations for adoption in regard to the 
number, age. sex. characteristics, and special 
needs of children who could be best served by 
the family; 

(21) any previous request for an assessment or in- 
volvement in an adoptive placement and the 
outcome of the assessment or placement; 

(22) whether the individual has ever been a respondent 
in a domestic violence proceeding or a proceed- 
ing concerning a minor who was allegedly 
abused, neglected, abandoned, or delinquent, and 
the outcome of the proceeding; 



(23) 

(24) 
(25) 

(26) 



whether the applicant has located a parent inter- 
ested in placing a child for adoption with the 
applicant, and a brief, non identifying description 
of the parent and the child; 
the applicants" age, date of birth, nationality, race 
or ethnicity, and any religious preference; 
the applicant's marital and family status and 
history, including the presence of any children 
bom to or adopted by the applicant, and any 
other children in the household; 



(27 



the applicant's educational and employment 
history and any special skills; and 
any additional fact or circumstance that may be 
relevant to a determination of the applicant's 
suitability to be an adoptive parent, including the 
quality of the home environment and the level of 
functioning of any children in the household. 
When any of the information listed in this Paragraph is 

not reasonably available, the p replacement assessment shall 

state why the information is unavailable. 

(c) The adoptive — home study assessment must be 
prepared and typed for review by the agency's adoption 
review committee, and it must become part of the appli- 
cants" permanent record. 

(d) Narrative dictation during the provisional period of 
lic e nsur e — must b e r e oordod — by ag e ncy — staff providing 
probl e m pr e gnancy s e r . 'ic e s. conducting adoptive studios. 
and — providing — post placement — service s — following each 
contact with the child, biological parents, and adoptive 
par e nts and this dictation must becom e part of th e porma 
nent record . Once the agency has made a decision regard- 
ing the suitability of the applicant as an adoptive placement. 
the p replacement assessment shall include specific docu- 
mentation of the factors which support that determination. 
If the agency determines that the applicant is not suitable to 
be an adoptive parent, the assessment shall include specific 
documentation of the factors which support that determina- 
tion. 

Authority G.S. 131D-10.5: 143B-153; 48-3-303: 48-2-502. 

.0009 NOTIFICATION REGARDING 

PREPLACEMENT ASSESSMENT 

(a) The agency shall notify applicants in writing within 
30 days of completion of the adoptive study preplacement 
assessment of the acceptance or denial or their application. 

(b) When applicants are not accepted, the agency shall 
share with them the reasons a child cannot be placed in 
their home. The agency shall offer sen'ices to the appli 
cants to assist th e m in adju s ting to th e d e cision. 

(cj If the applicant disagrees with the unfavorable 
preplacement assessment, the applicant may request an 
intemal review by the agency director. 

(d) The applicant, after exhausting the agencv"s proce- 
dures for intemal review, may prepare and file a written 
response with the Division of Social Services and the 
agency. The Division shall acknowledge receipt of the 



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PROPOSED RULES 



response within 30 days, but shall have no authority to take 
any action with respect to the response. A copy of the 
response shall be attached to the unfayorable assessment. 

£e} Following an unfavorable preplacement assessment 
being filed with the Division, the county department of 
social services shall be notified by the Division, and shall 
take appropriate action regarding any child placed in the 
home of the prospective adoptive parent who is the subject 
of the unfavorable assessment. 

(f) An unfavorable preplacement assessment and any 
response filed with the Division under this section shall not 
be public records ag set forth in G.S. 132. 

Authority G.S. 131D-10.5: 143B-153; 48-3-303. 

.0010 SERVICES TO ADOPTIVE APPLICANTS 
AND FAMILIES 

(a) Th e ag e noy — ohall provide oer i 'io e o — to adoptiv e 
applioonto to assi o t th e m in making on inform e d d eetsiea 
about adoption. — The agency shall provide tho opportunity 
for the applicanta to participate in the adoptive s tudy and in 



tho aooessmont of thoir potential for m ee ting the noodo of 
th e children availabl e for adoption. The agency shall 
provide upon request a written statement of the services it 
provides and of its procedure for selecting a prospective 
adoptive parent for a child, including the role of the child's 
parent or guardian in the selection process. TTiis statement 
must include a schedule of any fees or expenses charged by 
the agency and a summary of the provisions of G. S. 48 
that pertain to the requirements and consequences of a 
relinquishment and to the selection of a prospective adop- 
tive parent. 

(b) The agency shall discuss the children potentially 
available for adoption with the adoptive applicants. The 
selection of a prospective adoptive parent for a minor shall 
be made by the agency, and based on the preplacement 
assessment. The selection may be based on criteria 
requested by a parent who relinquishes the child to the 
agency. 

(c) Following completion of an approved adoptive study, 
a preplacement assessment, the agency shall prepare the 
adoptive applicants for the placement of a particular child. 
Preparation must include: 

(1) information about the needs and expectations of 
the child and of the adoptive family; 

(2) information to the extent allowed by law as 
specified in G.S. 4«^S 48-3-205 about the 
child's background and the health history of the 
child's biological parents and other relatives; and 

(3) visits with the child prior to placement. 

(d) The agency worker shall visit in the home of the 
adoptive family at lea s t quarterly after the placement of a 
child and prior to the final order of adoption, decree of 
adoption. The first visit must occur within two weeks after 
placement. Frequency of visits thereafter must shall be 
determined by the child's and family's needs. Observations 
made during the visits must shall be used in making 



recommendations to the court of adoptions in regard to the 
int e rlocutor)' d e cr ee and final order, decree of adoption, or 
in regard to dismissal of the adoption petition. 

(e) When applicable, the agency shall take steps neces- 
sary to assure that the adoptive placement comes into 
compliance with the interstate compact on the placement of 
children. 

(f) The agency shall make post-adoption services 
available to the adoptive parents, the biological parents, and 
the adoptee after the final ord e r decree of adoption has been 
entered. 

Authority G.S. 48-1 et. seq.; 110-57. 1; 13 ID- 10-5; 143B- 
153; 48-3-204. 

.0011 LEGAL PROCESS 

(a) The agency shall instruct the adoptive parents in 
procedures regarding the legal process for adoption and 
shall e ncourag e instruct them to file their adoption petition 
s oon after placomont occurs, within 30 days. 

(b) The agency shall prepare and file the required 
consents and other legal documents and reports with the 
court of adoptions at the appropriate times once the adop- 
tion petition has been filed. 

(c) During the process of preparing court reports, the 
petitioner, and each member of the petitioner's home shall 
be interviewed in the petitioner's home. In addition, at 
least one interview shall be conducted in the presence of the 
petitioner and the adoptee to observe interactions between 
the them. The report to the court must be in writing and 
contain the information required by G.S. 48-2-502(b). 

(d) The agency shall give the petitioner a copy of each 
report filed with the court, and retain a copy, except, 
pursuant to G.S. 48-10-105, the agency shall not release to 
the petitioner a copy of any court order, judgment, decree, 
or pending legal proceeding containing identifying informa- 
tion. 

Authority G.S. 48-1 et.seq.; 131D-10.5; 143B-153; 48-2- 
502. 

.0012 RECORDS 

(a) The agency shall maintain children's and biological 
parent's records in accordance with R e gulations rules set 
forth in 10 NCAC 410. 

(b) The agency shall keep separate records for each 
adoptive applicant and family. These records must contain 
the following: 

(1) application form; 

(2) copies of marriage certificates, if applicable; 

(3) documentation of marriage termination, if appli- 
cable; 

(4) current medical records on all family members 
and psychological or psychiatric reports, if 
applicable; 

(5) references from at least three sources; 

(6) adoptive — s tudy preplacement assessment con- 



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September 16, 1996 



963 



PROPOSED RULES 



ducted by the agency; 

(7) copies of correspondence to. from, and in regard 
to the applicants: 

(8) summary and dates and content of contacts prior 
to and following approval for adoption until the 
final ord e r decree of adoption is entered; 

(9) copies of information given to the applicant and 
family concerning the child or children to be 
placed for adoption with them; 

(10) copies of all legal documents pertaining to the 
adoption; and 

(11) summary containing the placement decision, pre- 
placement and post-placement contacts with the 
family and child. 

(c) In the event the applicants were not accepted or did 
not have a child placed with them, the record shall contain 
a narrative clearly indicating the reasons and the manner in 
which the decision was presented to the applicants 

(d) All individual child and adoptive family records shall 
be permanentl)' retained by the agency. If necessary, the 
files must be microfilmed in accordance with provisions of 
G.S. 8-45.1, following which the original files must be 
destroyed by an authorized shredding process. 

(e) All child and adoptive applicant and family records 
must be kept in securely locked quarters and information 
from the files fnay shall be divulged only in compliance 
with provisions of G.S. ' 1 8 25. G.S. 48-9-105. 

Authority G.S. 131D-10.5; 143B-153: 48-3-303. 

CHAPTER 49 - AFDC 

SUBCHAPTER 49A - GENERAL 
PROGRAM ADMINISTRATION 

.0002 DEFINITIONS 

TThe following definitions apply to this Chapter: 

(1) "Adjusted Payment" means a pa)ment to the 
recipient to correct a county-responsible under- 
payment. 

(2) "Appeal" means an oral or written request from 
a client for a hearing to review the action of a 
county Department of Social Services when the 
client is dissatisfied with the decision in his case. 

(3) "Application Process" means a series of actions 
begirming with a signed application and ending 
the date a check or denial notice is mailed. 

(4) "Assistance Unit" means the total number of 
persons whose needs are considered in determin- 
ing the payment amount. 

(5) "Budget Unit" means all those persons for whom 
application has been made plus anyone in the 
home w ho is liable for the support of a member 
of the assistance unit or whose income is counted 
as available to the assistance unit. 

(6) "Client" means member of the assistance unit. It 
may be used interchangeably with payee, recipi- 



ent and applicant. 

(7) "Collateral" means a person or organization that 
can substantiate or verify information necessary 
to establish eligibility. 

(8) "Determination" means the process of verifying 
eligibility factors for persons applying for AFDC. 

(9) "Disregard of Earned Income" means the proce- 
dure for exempting certain portions of earned 
income as a resource when determining the 
amount of payment. 

(10) "Effective Date" means the date for which the 
benefit is authorized. 

(11) "Ehgibility, Initial" means the state of eligibility 
at time of application. 

(12) "Essential Person" means a person who gives an 
essential service to a client, and, if in need, is 
eligible to be included in the assistance unit. 

(13) "Excluded Income" means money received by a 
member of the budget unit which is not counted 
in determining eligibility for assistance. 

(14) 'Father, Alleged" means the man who is said 
without proof to be the father of a child. This 
includes a father who has admitted paternity 
when paternity has not been established Ln a court 
of law. 

(15) "Father, Legal" means; 

(a) The man who is married to the mother of 
child at the time of birth of the child, 
regardless of whether they are living to- 
gether. The legal father is not necessarily 
the natural father, but is legally responsible 
for support; or 

(b) A man who has been determined by the 
court to be the father of the child through 
a paternity suit or by act of legitimation; 
or 

(c) A man who has legally adopted the child. 

(16) "Father, Natural" means the biological father of 
the child. He may be the alleged or legal father. 

(17) "Full-Time Student" means a student so desig- 
nated by the school in which he is enrolled. 

(18) "Minor Mother" means a mother who is under 
the age of 18 who may be payee for an assistance 
unit or a recipient included in another assistance 
unit. 

(19) "Needy Spouse" means the husband or wife of a 
specified relative (other than a parent) who is 
eligible to be included in the assistance unit if he 
applies for assistance and meets the requirements 
of an essential person. 

(20) "Payee" means the person in whose name the 
AFDC payment is made. 

(21) 'Payment Month" means the month for which the 
payment is made. 

(22) "Prospective Budgeting" means the best estimate 
of income in the payment month. Use when 
dotormining benefits for the first tv . 'o payment 



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PROPOSED RULES 



montha. 

(23) "Reapplication" means a subsequent application 
when a case has been terminated or suspended. 

(24) "Recipient" means an eligible person whose 
needs are included in the assistance payment. 

(25) "Remainder Interest" means property which will 
be inherited in full at a life estate interest 
holder's death. 

(26) "Revocable Trust" means funds held in trust 
which are available for the client's use. 

(27) "Verification" means the confirmation of facts 
and information used in determining eligibility. 

Authority G.S. 108A-25; MSB- 153; 45 C.F.R. 233. 

SUBCHAPTER 49B - ELIGIBILITY 
DETERMINATION 

SECTION .0200 - APPLICATION PROCESS 

.0202 ENITIAL INTERVIEW 

The applicant shall be allowed to have any person(s) of 
his choice participate in the interview. The applicant shall 
be informed of the following: 

(1) He must provide: 

(a) the names of collaterals, such as landlords, 
employers, and others with knowledge of 
his situation; 

(b) information about his resources; 

(c) verification of his earned income and any 
operational expenses; 

(d) his Social Security number unless he has 
lost his card; 

(e) medical forms when appropriate; 

(f) work registration card from ESC; 

(g) statement from a dealer when verified 
equity of a motor vehicle is disputed; 

(h) evidence of good cause claim for non- 
cooperation with the child support enforce- 
ment agency; 

(i) verification of the amount of a lump sum 
payment and other required information 
regarding the lump sum; 

(j) verification of stepparent's income and 
verification of income of a minor parent's 
parent or legal guardian; and 

(k) signed statement from a doctor or medical 
facility substantiating a pregnancy and the 
expected due date. 

(2) It is the county's responsibility to use collateral 
sources to substantiate or verify information 
necessary to establish eligibility. Collateral 
sources of information include knowledgeable 
individuals, business organizations, public re- 
cords, and documentary evidence. If the appli- 
cant does not wish necessary collateral contacts to 
be made, he can withdraw the application. If he 



denies permission to contact necessary collaterals, 
the application shall be rejected due to failure to 
cooperate in establishing eligibility. 

(3) A worker will visit his home at the county's 
option. The county's decision to make a home 
visit will be based on error-prone characteristics 
defined by the state using quality control and 
other management data. 

(4) The applicant has the right to: 

(a) receive assistance if found eligible; 

(b) be protected against discrimination on the 
grounds of race, creed, or national origin 
by Title VI of the Civil Rights Act of 
1964. He may appeal such discrimination; 

(c) spend his assistance payment as he wishes, 
but it must be in his best interest and that 
of his family. A substitute payee may be 
appointed for those individuals who cannot 
manage the payments; 

(d) receive his monthly check in advance until 
the payment is terminated by appropriate 
action; 

(e) have any information given to the agency 
kept in confidence; 

(f) appeal, if his assistance will be denied, 
changed or terminated, his payment is 
incorrect based on the agency's interpreta- 
tion of state regulations, or his request for 
a change in the amount of assistance was 
delayed beyond 30 days or rejected; 

(g) reapply at any time, if found ineligible; 
and 

(h) withdraw from the assistance program at 
any time. 

(5) The applicant's responsibilities. He must: 

(a) provide the county department, state and 
federal officials, the necessary sources 
from which the county department can 
locate and obtain information needed to 
determine eligibility; 

(b) report to the county department of social 
services any change in situation that may 
affect eligibility for a check within five 10 
calendar days after it happHjns. he learns of 
the change. The meaning of fraud shall be 
explained. The applicant shall be informed 
that he may be suspected of fraud if he 
fails to report a change in situation and 
that is such situations, he may have to 
repay assistance received in error and that 
he may also be tried by the courts for 
fraud; 

(c) inform the county department of social 
services of any person or organization 
against whom he has a right to recovery. 
When he accepts medical assistance (in- 
cluded with any AFDC), the applicant 



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965 



PROPOSED RULES 



assigns his rights to third party insurance 
benefits to the state. He shall be informed 
that it is a misdemeanor to fail to disclose 
the identity of any person or organization 
against whom he has a right to recovery; 
(d) immediately report to the county depart- 
ment the receipt of a check which he 
knov^s to be erroneous, such as two checks 
for the same month,, or a check in the 
wrong amount. If he does not report such 
payments, he may be required to repay 
any o\erpayment. 

Authority G.S. 108A-43; MSB- 153: 45 C.F.R. 206.10. 

SECTION .0300 - ELIGIBILITY FACTORS 

.0310 PROSPECTIVE BUDGETING AND 
QUARTERLY REPORTING 

In addition to the requirements found in 4 5 CFR 233.36 
which is hereby adopted by rcforonco under G.S. 150B 
11(c). monthly r e porting shall b e r e quired on oth e r e rror 
pron e classes of rooipi e nto as defin e d by the stat e bas e d on 
quality control and other management data. 

(a) Income shall be budgeted prospectively for determin- 
ing eligibilits' for and the amount of AFDC pa\'ments. To 
arri\'e at a monthlv amount to consider, the following 
processes shall be followed: 

(1) For income that is paid on less than a monthlv 



(2) 



Ql 



basis, the pa\- received from each period during 
a month shall be averaged and con\erted to a 
monthls' amount as follows. Averaged pay shall 
be multiplied by: 

(A) 2 if pa\ is received twice per month 

(B) 2. 15 if pay is received e\erv two weeks 

(C) 4.3 if pay is received weekly 
For income that is received once per month, the 
amount received from tu'o previous successive 
months shall be a\eraged to arrive at one 
monthh' amount. 

Annualized self-emplo\ ment income shall be 
averaged over the lesser of the following period 
the number of months the business has been in 
operation or 12 months. 

(h) The monthly income calculated in Paragraph (a) of 
this Rule shall be used to determine the AFDC payment for 
3 consecuti\'e calendar months. 

(c) Quarterly reporting shall be required for error-prone 
classes of recipients as defined by the state based on quality 
control and other management data. The quarterh' report- 
ing process shall foUou the processing requirements found 
in 45 CFR 233.37 which is hereby incorporated bv refer- 
ence mcluding all subsequent amendments and editions. 
Copies of this Code of Federal Regulations may be obtained 
from the Di\'ision of Social Ser\'ices, 325 North Salisbury 
Street. Raleigh. N. C. 27603 (telephone number (919) 733- 
3055 at a cost of ten cents ($.10) per page at the time of 



adoption of this Rule. 

(d) AFDC families shall be required to report all 
changes within 10 calendar days after they become aware 
a change has occurred. 

Authority G.S. 143B-153; 45 C.F.R. 233.28; 45 C.F.R. 
233.36. 

SECTION .0500 - REDETERMINATION OF 
ELIGIBILrTY 

.0502 CHANGES IN SITUATION 

(a) Each client shall be required to report any change in 
his situation within ftve J_0 calendar da_NS after it occurs, he 
learns of the change. 

(b) The change shall be evaluated and appropriate action 
effective as earl}' as the next month but never later than tuo 
months following the date the change is reported. 

Authority G.S. 143B-153; 45 C.F.R. 206.10. 

Notice IS hereby given in accordance with G.S. 
150B-21.2 that the Department of Human Resources 
intends to adopt nde cited as JO NCAC 41 P .0013. Notice 
of Rule-making Proceedings was published in the Register 
on July 15. 1996. 

Proposed Effective Date: Aprd 1, 1997 

A Public Hearing wdl be conducted at 10:00 a.m. on 
October 17, 1996 at the Albemarle Building, Room 943-2, 
325 N. Salisbury Street. Raleigh, NC 27603. 

Reason for Proposed Action: 77?(5 Rule will establish 
guidelines for the implementation of G. S. 48-2-504 which 
authorizes an agency which prepares a report to the court 
in an adoption case may charge the petitioner a fee for 
preparing and writing the report. This Rule will also 
establish guidelines for the implementation of G.S. 48-3-304 
which authorizes an agency that prepares a preplacement 
assessment in an adoption case to charge a fee for the 
preparation. 

Comment Procedures: Written comments may be pre- 
sented anytime before or at the public hearing or orallx at 
the hearing. A/iy person may request copies of this rule by 
calling or writing to Shamese Ransome, Special Assistant to 
the Director, NC Division of Social Sen'ices, 325 N. 
Salisbury St. , Raleigh. NC 27603. Phone: 919/733-3055. 

Fiscal Note: Tliis Rule affects the expenditures or revenues 
of local government finds. Tliis Rule does not affect state 
finds. Tliis Rule does not have a substantial economic 
impact of at least five mdlion dollars ($5,000,000) in a 12- 
month period. 



966 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



PROPOSED RULES 



CHAPTER 41 - CHILDREN'S SERVICES 

SUBCHAPTER 41P - CHILD-PLACING 
AGENCIES: ADOPTION 

.0013 FEES 

(a) County departments of social services may charge 
reasonable fees for the preparation of a preplacement 
assessment or report to the court in accordance with G.S. 
48-3-304(a) and G.S. 48-2-504(a). No fee shall be charged 
except pursuant to a written fee agreement which must be 
signed by the parties to be charged prior to the beginning 
of the preparation. The fee agreement shall not be based 
on the outcome of the report or the adoption proceeding. 

(b) Maximum fees for the preparation of the reports 
shall not exceed: 

(1) One thousand five hundred dollars ($1500) for 
the preplacement assessment and report to the 
court; and 

(2} Two hundred dollars ($200.00) for report to the 
court only. 

(c) No fee shall be charged when one or more of the 
following circumstances exists: 

£1) The head of household for the prospective adop- 
tive family is an AFDC or SSI recipient. 

(2) The family unit's income is below the State's 
Established Income (or 150% of the 1992 Federal 
Poverty Level); or 

(3) The family has identified an adoptee who is in 
the custody and placement responsibility of the 
Department of Social Services, and provided that 
the adoptive family continues to pursue the 
adoption of the identified child. 

(d) Fees for the above reports may be reduced or waived 
if it can be documented in the case record that the prospec- 
tive adoptive family cannot pay the required fee, or if other 
reasons exist that would result in the fee becoming a barrier 
to the adoption. Unless reduced or waived, the entire fee 
shall be paid in accordance with local policy. 

Authority G.S. 48-2-504; 48-3-304. 



Reason for Proposed Action: To adopt as permanent rules 
the temporary version of the licensure rules governing adult 
care homes which were adopted pursuant to Senate Bill 
864. 

Comment Procedures: Comments may be presented in 
writing anytime before or at the public hearing, or orally at 
the hearing. Time limits for oral remarks may be imposed 
by the Commission Chairman. Any person may request 
copies of these rules by calling or writing to Shamese 
Ransome, APA Coordinator, Social Services Commission, 
NC Division of Social Services, 325 North Salisbury Street, 
Raleigh, NC 27603. Phone: (919) 733-3055. 

Fiscal Note: Rides 10 NCAC 42B .1210, 42C .2011, 42D 
.1410 ajfect the expenditure or distribution of State and 
local funds. The other rules listed do not ajfect state or 
local funds. None of these Rules have a substantial eco- 
nomic impact of at least five million dollars ($5,000,000) in 
a 12-month period. 

CHAPTER 42 - INDIVIDUAL AND FAMILY 
SUPPORT 

SUBCHAPTER 42B - LICENSING OF HOMES 
FOR DEVELOPMENTAL DISABLED ADULTS 

SECTION .1200 - PERSONNEL 

.1209 COMPETENCY OF STAFF 

PROVIDING PERSONAL CARE 

(a) — TTie facility shall onsuro that staff who provide 
personal care to residents perform only those personal care 
tasks for which th e y have d o monotratod comp e t e ncy to th e 
facility administrator or a p e rson de s ignated by th e admini s 
trator. 

ffe^ — The facility s hall maintain documentation of the 
comp e t e ncy e valuation of staff who provid e p e rsonal car e 
that is kept curr e nt, fil e d in on ord e rly mann e r and mad e 
available for review by the Department of — Human Re 
s ourcos. 



4c«4c4c4;4c4c4E4:4c4c:lc***^:4e4: 



Authority G.S. 131D-2; 143B-153. 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the Social Services Commission intends 
to adopt rules cited as 10 NCAC 42B . 1210 - .1211, .2402 
- .2405; 42C .2011 - .2012. .3701 - .3704; 42D .1410 - 
.1411, .1827 - .1830; repeal 10 NCAC 42B .1209; 42C 
.2010; 42D .1409. Notice of Rule-making Proceedings was 
published in the Register on February 1 , 1996. 

Proposed Effective Date: May 1, 1997 

A Public Hearing will be conducted at 10:00 a.m. on 
October 17, 1996 at the Albemarle Building, Room 943-2, 
325 North Salisbury Street, Raleigh, NC 27603. 



.1210 STAFF COMPETENCY AND TRAINING 

10 NCAC 42D .1410 shall control for this Subchapter. 



Authority G.S. 131D-2; 131D-4.3; 1438-153. 

.1211 TRAINING PROGRAM CONTENT 
AND APPROVAL 

10 NCAC 420 .1411 shall control for this Subchapter. 

Authority G.S. 131D-2; 131D-4.3; 143B-153. 

SECTION .2400 - \nSCELLANEOUS RULES 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



967 



PROPOSED RULES 



.2402 RESroENT ASSESSMENT 

10 NCAC 42C .3701 shall control for this Subchapter. 

AutJwrity- G.S. 131D-2; 131D-4.3; 143B-153. 

.2403 RESIDENT CARE PLAN 

10 NCAC 42C .3702 shall control for this Subchapter. 



AutJwrin G.S. 131D-2: 131D-4.3: 143B-153. 

.2404 LICENSED HEALTH PROFESSIONAL 
SUPPORT 

10 NCAC 42C .3703 shall control for this Subchapter. 

.Authority G.S. 131D-2: 131D-4.3: 1438-153. 

,2405 COOPERATION WITH CASE MANAGERS 

jO NCAC 42C .3704 shall control for this Subchapter. 

Authority G.S. 131D-2: 131D-4.3: 143B-153. 

SUBCHAPTER 42C - LICENSING OF FAMILY 
CARE HOMES 

SECTION .2000 - PERSONNEL 

.2010 COMPETENCY OF STAFF 

PROVIDING PERSONAL CARE 

(e^ — The facility shall ensure that staff v . ho provide 
personal care to roaidonts perform only thooo p e rsonal car e 
tasks for which the>- hav e domonstratod comp e t e ncy to th e 
facility administrator or a person designated by the adminiQ 
trator. except when the administrator is also the personal 
car e staff. 

fb^ — The facility shall maintain docum e ntation of th e 
competency evaluation of staff who provide personal care 
that is Icept current, filed in on orderly manner and made 
availabl e for r e view by repres e ntativ e s of the D e partm e nt 
of Human R e sources. 

.Authority G.S. 131D-2; 1438-153. 

.2011 STAFF COMPETENCY AlVD TRAINING 

(a) The facility shall assure that personal care staff and 
those who directly supervise them in facilities without 
heavy care residents successfully complete a 20-hour 
training program, including competenc\' evaluation, ap- 
pro\ed by the Department. For the purposes of this 
Subchapter. heav\' care residents are those for whom the 
facility is providing special health-related personal care 
tasks. Directly supervise means being on A\it\- in the 
facility to oversee or direct the performance of staff duties. 

(b) The facility shall assure that staff who perform or 
directh' supervise staff who perform special health-related 
personal care tasks in facilities with heavy care residents 
successfully' complete a 75-hour training program, including 
competency e\'aluation. appro\'ed by the Department and 



comparable to the State-approved Nurse Aide I training. 

(c) The facility shall assure that training specified in 
Paragraphs (a) and (b) of this Rule is successfully com- 
pleted within one of the following time frames: 

(1) six months after implementation of a statewide 
training program for staff hired before such 
implementation: or 

(2) six months after hiring for staff hired after 
implementation of a statewide training program 
established by the Department of Community 
Colleges. 

(d) The Department shall have the authority to extend 
the six-month time frame specified in Paragraph (c) of this 
Rule ug to six additional months for a maximum allowance 
of f2 months for completion of training upon submittal of 
documentation to the Department by the facilits^ showing 
good cause for not meeting the six-month time frame. 

(e) Exemptions from the training re quirements of this 
Rule are as follows. 

(1) The Department shall exempt staff from the 20- 
hour training requirement upon successful com- 
pletion of a competency evaluation approved by 
the Department if staff have been employed to 
perform or directly supervise basic personal care 
tasks in a comparable long-term care setting for 
a total of at least twelve months during the three 
years prior to January' J^^ 1996. or the date they 
are hired, whichever is later. 

(2) The Department shall exempt staff from the 75- 
hour training requirement upon successful 
completion of a 15-hour refresher training and 
competency evaluation program or a competency 
evaluation program approved by the Department 
if staff have been employed to perform or di- 
rectly supervise special health-related personal 
care tasks in a comparable long-term care setting 
for a total of at least 12 months during the three 
years prior to January \^ 1996. or the date they 
are hired, whichever is later. 

(3) The Department shall exempt staff from the 20 
and 75-hour training and competency evaluation 
N^'ho are licensed health professionals or listed on 
the N.C. Nurse Aide Registr\'. 

(f) The facility shall maintain documentation of the 
traming and competency evaluations of staff required by the 
rules of this Subchapter. The documentation shall be filed 
in an orderly manner and made available for review by 
representatives of the Department. 

(g) The facility shall assure that staff who perform or 
directly super\'ise staff who perform basic personal care 
tasks or special health-related personal care tasks receive 
on-the-job training and super\'ision as necessary for the 
performance of individual job assignments prior to meeting 
the training and competency requirements of this Rule. 

(h) For the purposes of this Rule, basic personal care 
tasks include, but are not limited to the following: 

( 1 ) assist residents with toileting and maintaining 



968 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



PROPOSED RULES 



bowel and bladder continence; 

(2) assist residents with mobility and transferring: 

(3) provide care for normal, unbroken skin: 

£4} assist with personal hygiene to include mouth 
care, hair and scalp grooming, care of finger- 
nails, and bathing in shower, tub, bed basin; 

(5) trim hair; 

(6) shave resident; 

(7) provide basic first aid; 

(8) assist residents with dressing; 

£9} assist with feeding residents with special condi- 
tions but no swallowing difficulties: 

(10) assist and encourage physical activity; 

(11) take and record temperature, pulse, respiration, 
routine height and weight; 

(12) trim toenails for residents without diabetes or 
peripheral vascular disease: 

(13) perineal care; 

(14) apply condom catheters; 

(15) turn and position; 

(16) collect urine or fecal specimens; 

(17) take and record blood pressure if a registered 
nurse has determined and documented staff to be 
competent to perform this task; 

(18) apply and remove or assist with applying and 
removing prosthetic devices for stable residents if 
a registered nurse, licensed physical therapist or 
licensed occupational therapist has determined 
and documented staff to be competent to perform 
the task; and 

(19) apply or assist with applying ace bandages, 
TED's and binders for stable residents if a regis- 
tered nurse has determined and documented staff 
to be competent to perform the task. 

([} For the purposes of this Rule, special health-related 
personal care tasks are as follows: 

(1) assist with feeding residents with swallowing 
difficulty: 

(2) assist with gait training using assistive devices; 

(3) assist with or perform range of motion exercises; 

(4) empty and record drainage of catheter bag; 

(5) administer enemas: 

(6) bowel and bladder retraining to regain conti- 
nence: 

(7) test urine or fecal specimens: 

(8) use of physical or mechanical devices attached to 
or adjacent to the resident which restrict move- 
ment or access to one's own body used to restrict 
movement or enable or enhance functional abili- 
ties: 

(9) non-sterile dressing procedures: 

(10) force and restrict fluids; 

(1 1) apply prescribed heat therapy: 

(12) care for non-infected pressure ulcers; and 

(13) vaginal douches. 

Authority G.S. 131D-2; 131D-4.3; 143B-153. 



.2012 TRAINING PROGRAM CONTENT 
AND APPROVAL 

(a) The 20-hour training specified in Rule .2011 of this 
Subchapter shall consist of at least 12 hours of classroom 
instruction, and the remaining hours shall be supervised 
practical experience. Competency evaluation shall be 
conducted in each of the following areas: 

(1) personal care skills: 

(2) cognitive, behavioral and social care, including 
mental disabilities: and 

(3) residents' rights as established by G.S. 131D-21. 

(b) The 75-hour training specified in Rule .2011 of this 
Subchapter shall consist of at least 30 hours of classroom 
instruction and at least 30 hours of supervised practical 
experience. Competency evaluation shall be conducted in 
each of the following areas: 

(1) observation and documentation: 

(2) basic nursing skills, including special health- 
related tasks; 

(3) personal care skills; 

(4) cognitive, behavioral and social care, including 
mental disabilities; 



(5} 
£6} 



basic restorative services; and 



residents' rights as established by G.S. 131D-21. 
(c) The curriculum, number of hours for each content 
area, instructor qualifications, sites for classroom instruc- 
tion and supervised practical experience, and plans for 
competency evaluation and documentation for the 20-hour 
and 75-hour training programs shall be submitted to the 
Department for approval. 

Authority G.S. 131D-2; 131D-4.3; 143B-153. 

SECTION .3700 - RESIDENT ASSESSMENT 
AND CARE 

.3701 RESIDENT ASSESSMENT 

(a) The facility shall assure that an assessment of each 
resident is completed within 30 calendar days from the date 
of admission and annually thereafter using an assessment 
instrument approved by the Department. For the purposes 
of this Subchapter, the assessment is a functional assess- 
ment to determine a resident's level of functioning to 
include routines, preferences, needs, mood and psychoso- 
cial well-being, cognitive status and physical functioning 
in activities of daily living. Activities of daily living are 
personal functions essential for the health and well-being of 
the resident which are bathing, dressing, personal hygiene, 
ambulation or locomotion, transferring, toileting and eating. 

(b) The facility shall assure a reassessment of a resident 
is completed within 10 days of a significant change in the 
resident's condition. For the purposes of this Subchapter, 
reassessment is any assessment as defined in Paragraph (a) 
of this Rule other than the initial and annual assessments. 

(c) For the purposes of this Subchapter, significant 
change in the resident's condition is defined as follows: 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



969 



PROPOSED RLZES 



ill 



Significant change is one or more of the follow- 
ing: 

(A) deterioration in tv.o or more activities of 
daih' livingj. 

(B) change in ability- to walk or transfer: 

fC) change in the abilit\- to use one's hands to 
grasp small objects: 

(D) deterioration in behavior or mood to the 
point where daih' problems arise or rela- 
tionships have become problematic: 

(E) no response bv the resident to the treat- 
ment for an identified problem: 

(F) initial onset of unplanned weight loss or 
gain of 5 percent of bods weight within a 
30-da\ period or jO percent weight loss or 
gain w ithin a 6-month period: 

(G) threat to Hfe such as stroke, heart condi- 
tion, or metastatic cancer: 

(H) emergence of a pressure ulcer at Stage II 
or higher: 

(1) a new diagnosis of a condition likelv to 
affect the resident's ph\sical. mental, or 
psychosocial well-being o\er a prolonged 
period of time such as initial diagnosis of 
Alzheimer's disease or diabetes: 

(J) impro\'ed beha\ ior. mood or functional 
health status to the extent that the estab- 
lished plan of care no longer matches what 
is needed: 

(K) new onset of impaired decision-making. 

(L) continence to incontmence or indwelling 

catheter: or 
(.\1) the resident's condition indicates there ma\ 
be a need to use a restraint and there is no 
current restraint order for the resident. 

Significant change is not any of the following: 



(A] 
(BJ 

i£l 

IF] 



changes that suggest slight upward or 
downward mos'ement in the resident's 
status: 



short-term changes that resoh'e with or 

without intervention: 

changes that arise from easily re\'ersible 

causes: 

a short-term acute illness or episodic 

event: 



a well-established. predicti\e. csclical 

pattern: or 

steady impro%'ement under the current 

course of care, 
(d) If a resident experiences a significant change as 
defined in Paragraph (c) of this Rule, the facilit\- shall refer 
the resident to the resident's ph\ sician or other appropriate 
licensed health professional such as a mental health profes- 
sional, nurse practitioner. ph\ sician assistant or registered 
nurse in a timeh' manner consistent w ith the resident's 
condition but no longer than 10 da\ s from the significant 
change, and document the referral in the resident's record. 



(e) TTie assessment and reassessment shall be completed 
and signed bv the administrator or a person designated by 
the administrator. 

(f) The facility administrator or a person designated bv 
the administrator to perform resident assessments and 
reassessments shall successfulh' complete Department- 
appro\ed training on assessing residents by Juh j_^ 1996. 
.After this date, the administrator or person designated by 
the administrator to perform assessments and reassessments 
shall ha\e successfulh' completed the assessment training 
before performing an\' assessments or reassessments of 
residents. Registered nurses are exempt from the assess- 
ment training. 

Authority G.S. 131D-2: 131D-4.3: MSB- 153. 

.3702 RESroENT CARE PLAN 

(a) The facilin, shall assure a care plan is developed for 
each resident in conjunction with the initial resident assess- 
ment and revised as needed based on annual assessments 
and an\ reassessments of the resident. For the purposes of 
this Subchapter, the care plan is an indi\ idualized. written 
program of personal care for each resident. 

(b) The care plan shall include the follow ing: 

( 1 ) a statement of the care or service to be pro\'ided 
based on the assessment or reassessment: and 

(2) frequency of the sen, ice pro\ision. 

(c) The assessor shall sign the care plan upon its 
completion. 

(d) The facility shall assure that a phNsician authonzes 
personal care services and certifie s the following: 

( 1 ) the resident is under the ph\sician's care: and 

(2) the resident has a medical diagnosis w ith associ- 
ated physical or mental limitations that justify- the 
personal care services specified in the care plan. 

Authority G.S. 131D-2: 131D-4.3: 143B-153. 



LICENSED HEALTH PROFESSIONAL 
SUPPORT 

The facility shall assure that a registered nurse. 



.3703 

licensed under G.S. 90. Article 9A, participates in the on- 
site re\'iey\' and evaluation of the residents' health status and 
care plan within the first 45 da\ s of admission and at least 
every 90 davs thereafter for newlv admitted residents who 
require one or more special health-related personal care 
tasks, including but not limited to the follow ing. and at 
least e\ery 90 da\'s for current residents y^ho require one or 
more special health-related personal care tasks including but 
not limited to the follow ing: 

( 1 ) applying and removing ace bandages. TED's and 
binders: 

(2) feeding techniques for residents w ith swallowing 
problems: 

(3) bowel or bladder retraining involving hands-on 
and invasive actjy ities such as enemas, supposito- 
ries, and catheterizations: 



970 



NORTH CAROLINA REGISTER 



September 16. 1996 



11:12 



PROPOSED RULES 



(4} 
(6} 

m 

(8} 

(9} 

(10) 

an 

(12) 
(13) 
(14) 

(15) 
(16) 
(17) 



(18) 
(19) 

(20) 
(21) 

(22) 

(23) 



urinary catheterizations; 
chest physiotherapy or postural drainage; 
clean or sterile dressing changes; 
collecting or testing blood samples and taking 
action based on the results: 
colostomy care; 

decubitus care for stages I-IV wounds; 
irrigations of wounds, catheters or access de- 
vices; 

inhalation medication by machine; 
maintaining accurate intake and output data; 
medication administration through feeding tube; 
medication administration through injection or 
yascular access; 

administration of more than 10 medications; 
oxygen administration and monitoring; 
the monitoring of care for any residents who are 
restrained and the use of care practices as alterna- 
tives to restraints; 

oral, pharyngeal, or tracheal suctioning; 
testing urine samples and taking action based on 
the results; 
tracheostomy care; 

transferring semi-ambulatory or non-ambulatory 
residents; 
administering and monitoring of tube feedings; or 



12} 
(3) 
£4) 
i5) 



adjusting medications as ordered based on vital 
signs. 

(b) The facility shall assure that a registered nurse, 
occupational therapist licensed under G.S. 90. Article 18D 
or physical therapist licensed under G.S. 90-270.24. Article 
18B, participates in die on-site review and evaluation of the 
residents' health status and care plan at least every 90 days 
for those residents who require one or more of the follow- 
ing tasks: 

(1) application of prescribed heat therapy; 

application and removal of prosthetic devices; 

gait training using assistive devices: 

range of motion exercises: or 

any other prescribed physical or occupational 

therapy. 

(c) The facihty shall assure that participation in the on; 
site review and evaluation of the residents' health status and 
care plan by a registered nurse, occupational therapist or 
physical therapist as specified in Paragraphs (a) and (b) of 
this Rule includes: 

(1) identifying the appropriate persons to provide 
care and perform the tasks consistent with 21 
NCAC 36 .0400; 

(2) teaching or validating competencies of licensed 
practical nurses or non-licensed personnel who 
will provide care and perform the tasks; 

(3) evaluating the resident's response to care being 
provided; 

(4) reviewing and, if necessary, recommending 
changes in the care plan to meet the health- 



related needs of the resident; and 
(5) documenting the activities in Subparagraphs (1) 

through (4) of this Paragraph, 
(d) The facility shall assure that any staff who perform 
special health-related personal care tasks hsted in Paragraph 
(a) of this Rule are at least annually observed pr oviding 
care to residents by a licensed registered nurse or other 
a ppropriate licensed health professional who is employed by 
the facility or under contract or agreement, individually or 
through an agency, with the facility. 

Authority G.S. 131D-2: 131D-4.3: 143B-153. 

.3704 COOPERATION WITH CASE MANAGERS 

The administrator shall cooperate with and assure the 
cooperation of facility staff with case managers in their 
provision of case management services to the appropriate 
residents. 

Authority G.S. 131D-2; 131D-4.3; 143B-153. 

SUBCHAPTER 42D - LICENSING OF HOMES 
FOR THE AGED AND INFIRM 

SECTION .1400 - PERSONNEL 

.1409 COMPETENCY OF STAFF 

PROVIDING PERSONAL CARE 

(ft) — Tho facility shall ensure that staff who provide 
p e rsonal oaro to ro s idonts p e rform only thos e p e rsonal car e 
tnokfl for which they have demonstrat e d comp e t e ncy to th e 
facility' administrator or a person doaignatod by tho adminis 
trator. 

(b) — Th e facility shall maintain docum e ntation of th o 
comp e t e ncy e valuation of staff who provid e p e rsonal care 
and thoir aupor i 'isors that is kopt current, filod in on orderly 
manner and mndo available for rcviow by representative s of 
th e Departm e nt of Human Resources. 

Authority G.S. 131D-2; 143B-153. 

.1410 STAFF COMPETENCY AND TRAINING 

(a) The facility shall assure that staff who perform or 
directly supervise staff who perform basic personal care 
tasks successfully complete a 40-hour training program, 
including competency evaluation, approved by the Depart- 
ment. Directly supervise means being on duty in the 
facility to oversee or direct the performance of staff duties. 

(b) The facility shall assure that staff who perform or 
directly supervise staff who perform special health-related 
personal care tasks successfully complete a 75-hour trainin g 
program, including competency evaluation, approved by the 
Department and comparable to the State-approved Nurse 
Aide I training. 

(c) The facility shall assure that training specified in 
Paragraphs (a) and (b) of this Rule is successfully com- 
pleted within one of the following time frames: 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



971 



PROPOSED RULES 



(1) six months after implementation of a statewide 
training program for staff hired before such 
implementation; or 

(2) six months after hiring for staff hired after 
implementation of a statewide training program 
established by the Department of Community 
Colleges. 

(d) The Department shall haye the authority to extend 
the six-month time frame specified in Paragraph (c) of this 
Rule ug to six additional months for a maximum allowance 
of 12 months for completion of training upon submittal of 
documentation to the Department by the facility showing 
good cause for not meeting the six-month time frame. 

(e) Exemptions from the training requirements of this 
Rule are as follows: 

(1) The Department shall exempt staff from the 40- 
hour training requirement upon successful com- 
pletion of a competency eyaluation approyed by 
the Department if staff haye been employed to 
perform or directly supervise basic personal care 
tasks in a comparable long-term care setting for 
a total of at least twelve months during the three 
years prior to January L^ 1996, or the date they 
are hired, whichever is later. 

(2) The Department shall exempt staff from the 75- 
hour training requirement upon successful 
completion of a 15 -hour refresher training and 
competency evaluation program or a competency 
evaluation program approved by the Department 
if staff have been employed to perform or di- 
rectly supervise special health-related personal 
care tasks in a comparable long-term care setting 
for a total of at least rvvelve months during the 
three years prior to January ]^ 1996, or the date 
they are hired, whichever is later. 

(3) TTie Department shall exempt staff from the 40 
and 75-hour training and competency evaluation 
who are licensed health professionals or listed on 
the N.C. Nurse Aide Registry. 

(f) The facility shall maintain documentation of the 
training and competency evaluations of staff required by the 
rules of this Subchapter. The documentation shall be filed 
in an orderly manner and made available for review by 
representatives of the Department. 

(g) The facility shall assure that staff who perform or 
directly supervise staff who perform basic personal care 
tasks or special health-related personal care tasks receive 
on-the-job training and supervision as necessary for the 
performance of individual job assignments prior to meeting 
the training and competency requirements of this Rule. 

(h) For the purposes of this Rule, basic personal care 
tasks include, but are not limited to the following: 

(1) assist residents uith toiletmg and maintaming 
bowel and bladder continence. 

(2) assist residents with mobility and transferring: 

(3) provide care for normal, unbroken skin: 

(4) assist with personal hygiene to include mouth 



15} 
16] 

m 

(Si 
(9) 



care, hair and scalp grooming, care of finger- 
nails, and bathing in shower, tub, bed basin: 
trim hair: 
shave resident; 



provide basic first aid; 
assist residents with dressing: 
assist with feeding residents with special condi- 
tions but no swallowing difficulties: 
assist and encourage physical activity: 
take and record temperature, pulse, respiration, 
routine height and weight: 

trim toenails for residents without diabetes or 
peripheral vascular disease: 
perineal care; 
apply condom catheters: 
turn and position: 
collect urine or fecal specimens; 
take and record blood pressure if a registered 
nurse has determined and documented staff to be 
competent to perform this task; 
apply and remove or assist with applying and 
removing prosthetic devices for stable residents if 
a registered nurse, licensed physical therapist or 
licensed occupational therapist has determined 
and documented staff to be competent to perform 
the task: and 

apply or assist with applying ace bandages, 
TED's and binders for stable residents if a regis- 
tered nurse has determined and documented staff 
to be competent to perform the task. 
(i) For the purposes of this Rule, special health-related 
personal care tasks are as follows: 

( 1) assist with feeding residents with swallowing 
difficulty: 

assist with gait training using assistive devices; 
assist with or perform range of motion exercises: 
empty and record drainage of catheter bag; 
administer enemas; 



(10) 
OH 

(12) 

(13) 
(14) 
(15) 
(16) 
liD 



(18) 



(19) 



m 

(3) 
14} 
15] 
16] 



bowel and bladder retraining to regain conti- 
nence: 

(7) test urine or fecal specimens; 

(8) use of physical or mechanical devices attached to 
or adjacent to the resident which restrict move- 
ment or access to one's own body used to restrict 
movement or enable or enhance functional abili- 
ties; 

(9) non-sterile dressing procedures: 

(10) force and restrict fluids; 

(11) apply prescribed heat therapy: 

(12) care for non-infected pressure ulcers; and 

(13) vaginal douches. 

Authority G.S. 131D-2: 131D-4.3; 1438- 153. 

.1411 TRAENENG PROGRAM CONTENT 
AND APPROVAL 

(a) The 40-hour training specified in Rule . 1410 of this 



972 



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PROPOSED RULES 



Section shall consist of at least 20 hours of classroom 
instruction, and the remaining hours shall be supervised 
practical experience. Competency evaluation shall be 
conducted in each of the following areas: 

(1) basic nursing skills; 

(2) personal care skills: 

(3) cognitive, behavioral and social care, including 
mental disabilities; 

(4) basic restorative services; and 

(5) residents' rights as established by G.S. 131D-21. 

(b) The 75-hour training specified in Rule .1410 of this 
Section shall consist of at least 30 hours of classroom 
instruction and at least 30 hours of supervised practical 
experience. Competency evaluation shall be conducted in 
each of the following areas: 

(1) observation and documentation; 

(2) basic nursing skills, including special health- 
related tasks; 

(3) personal care skills; 

(4) cognitive, behavioral and social care, including 
mental disabilities; 

(5) basic restorative services; and 

(6) residents' rights as established by G.S. 131D-21. 

(c) The curriculum, number of hours for each content 
area, instructor qualifications, sites for classroom instruc- 
tion and supervised practical experience, and plans for 
competency evaluation and documentation for the 40-hour 
and 75-hour training programs shall be submitted to the 



Department for approval . 

Authority G.S. 131D-2; 131D-4.3; 143B-153. 

SECTION .1800 - REMAINING POLICIES 
AND REGULATIONS 

.1827 RESIDENT ASSESSMENT 

10 NCAC 42C .3701 shall control for this Subchapter. 

Authority G.S. 131D-2; 13W-4.3; 143B-153. 

.1828 RESIDENT CARE PLAN 

10 NCAC 42C .3702 shall control for this Subchapter. 

Authority G.S. 131D-2; 131D-4.3: 143B-153. 

.1829 LICENSED HEALTH PROFESSIONAL 
SUPPORT 

10 NCAC 42C .3703 shall control for this Subchapter. 



Authority G.S. 131D-2; 131D-4.3; 1438-153. 

.1830 COOPERATION WITH CASE MANAGERS 

10 NCAC 42C .3704 shall control for this Subchapter. 

Authority G.S. 131D-2: 131D-4.3; 143B-153. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 150B-21.2 that the Environmental Management Commission intends to 
amend rules cited as 15A NCAC 2B .0224, .0227, .0303. Notice of Rule-making Proceedings was published in the 
Register on December 15, 1995. 

Proposed Effective Date: August 1, 1998 

A Public Hearing will be conducted at 7:00 p.m. on November 21, 1996 at the Blue Ridge Auditorium, Highway 107, 
Cashiers, NC. 

Reason for Proposed Action: The N.C. Department of Environment , Health and Natural Resources on behalf of the 
Environmental Management Commission (EMC) will conduct a public hearing in order to receive public comments on two 
management option proposals for the Thorpe Reservoir watershed. Option Number One proposes to reclassify Thorpe 
Reservoir, Hurricane Creek, and Laurel Branch as HQW (High Quality Waters). The HQW management requirements 
associated with wastewater discharges would apply to the entire watershed, but the sedimentation/erosion control 
requirements for HQW implemented by the Division of Land Resources would only apply to one mile and draining to the 
HQW designated waters (Tfiorpe Reservoir, Hurricane Creek arid Lmrel Branch). Ttie HQW storm water requirements would 
not apply because existing drinking water supply watershed protection ordinances would continue to be implemented by the 
local governments. Option Number One would amend rules ISA NCAC 2B .0303 and 15A NCAC 2B .0224. 

Option Number Two would not apply the HQW supplemental classification to Thorpe Reser\'oir and its tributaries, nor would 
it apply the sedimentation/erosion control requirements associated with HQW. Wastewater discharge requirements in Option 
Number Two would be identical to those in Option Number One; that is, the HQW management requirements associated 
with wastewater discharges would apply to the entire watershed. Storm water management requirements would be 
implemented by the local government through their existing drinking water supply watershed protection program. Option 
Number Two would amend rule 15A NCAC 2B .0227. 



11:12 



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September 16, 1996 



973 



PROPOSED RULES 



The following chart summarizes the two proposed options for the Thorpe Reservoir watershed: 



Location of management 
strategy in rule: 



Option 7 
HQWrule, .0224 



Option 2 
Water Quality 
Management Plan 
.0227 



Classification: 



HQW wastewater 
requirements applied to: 

Div. of Land Quality 
HQW and sed. /eras, 
requirements applied to: 

WS-III storm water 
control requirements 
applied to: 



Thorpe Res. , Hurricane Creek, 
& Laurel Br - WS-Ul HQW 
(proposed); other tributaries 
WS-Ul (current classification) 

Thorpe Reservoir and all 
tributaries 

Within one mile and draining 
to Thorpe Res. , Hurricane Creek 
& Laurel Branch 

Thorpe Reservoir watershed 



Thorpe Reservoir and 
all tributaries - WS-III 
(current classification) 



Thorpe Reservoir and 
all tributaries 

None 



Thorpe Reservoir 
watershed 



The purpose of this announcement is to encourage those interested in this proposal to provide comments. You may either 
attend the public hearing and make relevant verbal comments or submit written comments, data or other relevant information 
by December 21, 1996. The Hearing Officer may limit the length of time that you may speak at the public hearing, if 
necessary, so that all those who wish to speak may have an opportunity to do so. We encourage you to submit written 
comments as well. 

The EMC is very interested in all comments pertaining to the proposed reclassifications. It is very important that all 
interested and potentially affected persons or parties make their views known to the EMC whether in favor of or opposed 
to any and all provisions of the proposed reclassifications. The EMC may, in accordance with N. C. G. S. 150B-21-2, make 
changes in final rules without renotice as long as the adopted rules do not differ substantially from the proposed rules. In 
accordance with this authority, the EMC may adopt final management requirements or rules that are more or less stringent 
than those being noticed if the EMC determines that the final adopted rules do not differ substantially from the proposed 
rules. All interested and potentially affected persons are strongly encouraged to read the entire announcement and 
supporting information, and make appropriate comments on the proposal presented. The proposed effective date for the final 
rules pursuant to this hearing process is August 1 , 1998. Written comments may be submitted to: 

Liz Kovasckitz 

DEHNR/Division of Environmental Management 

P. O. Box 29535 

Raleigh, NC 27626-0535 

(919) 733-5083, extension 572 

Fiscal Note: These Rules do not affect the expenditures or revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five million dollars ($5 ,000 ,000) in a 12-month period. 



CHAPTER 2 - ENVIRONMENTAL 

MANAGEMENT 



SUBCHAPTER 2B - 
STANDARDS: 



SURFACE WATER 
MONFTORING 



SECTION .0200 - CLASSIFICATIONS AND 

WATER QUALITY STANDARDS APPLICABLE 

TO SURFACE WATERS OF NORTH CAROLINA 



.0224 HIGH QUALITY WATERS 

High Quality Waters (HQW) are a subset of waters with 
quality higher than the standards and are as described by 
15A NCAC 2B .0101(e)(5). The following procedures 
shall be implemented in order to implement the require- 
ments of Rule .0201(d) of this Section. 

(1) New or expanded wastewater discharges in High 
Quality Waters shall comply with the following: 



974 



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September 16, 1996 



11:12 



PROPOSED RULES 



(a) Discharges from new single family resi- 
dences shall be prohibited. Those existing 
subsurface systems for single family resi- 
dences which fail and must discharge shall 
install a septic tank, dual or recirculating 
sand filters, disinfection and step aeration. 

(b) All new NPDES wastewater discharges 
(except single family residences) shall be 
required to provide the treatment described 
below: 

(i) Oxygen Consuming Wastes: Efflu- 
ent limitations shall be as follows: 
BOD5= 5 mg/1, NH -N = 2 mg/1 
and DO = 6 mg/1. More stringent 
limitations shall be set, if necessary, 
to ensure that the cumulative pollut- 
ant discharge of oxygen-consuming 
wastes shall not cause the DO of the 
receiving water to drop more than 
0.5 mg/1 below background levels, 
and in no case below the standard. 
Where background information is 
not readily available, evaluations 
shall assume a percent saturation 
determined by staff to be generally 
applicable to that hydroenvironment. 

(ii) Total Suspended Solids: Discharges 
of total suspended solids (TSS) shall 
be limited to effluent concentrations 
of 10 mg/1 for trout waters and 
PNA's, and to 20 mg/1 for all other 
High Quality Waters. 

(iii) Disinfection: Alternative methods 
to chlorination shall be required for 
discharges to trout streams, except 
that single family residences may 
use chlorination if other options are 
not economically feasible. Domes- 
tic discharges are prohibited to SA 
waters. 

(iv) Emergency Requirements: Failsafe 
treatment designs shall be em- 
ployed, including stand-by power 
capability for entire treatment 
works, dual train design for all 
treatment components, or equivalent 
failsafe treatment designs, 
(v) Volume: The total volume of 
treated wastewater for all discharges 
combined shall not exceed 50 per- 
cent of the total instream flow under 
7Q10 conditions. 

(vi) Nutrients: Where nutrient 

overenrichment is projected to be a 
concern, appropriate effluent limita- 
tions shall be set for phosphorus or 
nitrogen, or both. 



(vii) Toxic substances: In cases where 
complex wastes (those containing or 
potentially containing toxicants) may 
be present in a discharge, a safety 
factor shall be applied to any chemi- 
cal or whole effluent toxicity alloca- 
tion. The limit for a specific chem- 
ical constituent shall be allocated at 
one-half of the normal standard at 
design conditions. Whole effluent 
toxicity shall be allocated to protect 
for chronic toxicity at an effluent 
concentration equal to twice that 
which is acceptable under design 
conditions. In all instances there 
may be no acute toxicity in an efflu- 
ent concentration of 90 percent. 
Ammonia toxicity shall be evaluated 
according to EPA guidelines pro- 
mulgated in "Ambient Water Qual- 
ity Criteria for Ammonia - 1984"; 
EPA document number 

440/5-85-001; NITS number 
PB85-227114; July 29, 1985 (50 FR 
30784) or "Ambient Water Quality 
Criteria for Ammonia (Saltwater) - 
1989"; EPA document number 
440/5-88-004; NTIS number 
PB89- 169825. This material related 
to ammonia toxicity is hereby incor- 
porated by reference including any 
subsequent amendments and editions 
and is available for inspection at the 
Department of Environment, 
Health, and Natural Resources Li- 
brary, 512 North Salisbury Street, 
Raleigh, North Carolina. Copies 
may be obtained from the National 
Technical Information Service, 5285 
Port Royal Road, Springfield, Vir- 
ginia 22161 at a cost of forty-seven 
dollars ($47.00). 
(c) All expanded NPDES wastewater dis- 
charges in High Quality Waters shall be 
required to provide the treatment described 
in Sub-Item (l)(b) of this Rule, except for 
those existing discharges which expand 
with no increase in permitted pollutant 
loading. 
(2) Development activities which require an Erosion 
and Sedimentation Control Plan in accordance 
with rules established by the NC Sedimentation 
Control Commission or local erosion and sedi- 
mentation control program approved in accor- 
dance with 15A NCAC 48 .0218, and which 
drain to and are within one mile of High Quality 
Waters (HQW) shall be required to follow the 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



975 



PROPOSED RULES 



stormwater management rules as specified in 15 A 

NCAC 2H .1000. Stormwater management 

requirements specific to HQW are described in 

15A NCAC 2H .1006. 

(3) Listing of Waters Classified HQW with Specific 

Actions. Waters classified as HOW with specific 

actions to protect exceptional v.ater quality are 

listed as follows: Thorpe Resep.oir [Little 

Tennessee River Basin, Index No. 2-79-23-(l)1 

including all of its tributaries shall be managed 

with respect to wastewater discharges through 

Item (1) of this Rule. Item (2) of this Rule shall 

not be applied in association with this HOW 

because of the local government implementation 

of WS-in stormwater management requirements. 

If an applicant objects to the requirements to protect high 

quality waters and belie\es degradation is necessary' to 

accommodate important social and economic development, 

the applicant may contest these requirements according to 

the provisions of G.S. 143-215. 1(e) and 150B-23. 

Authority G.S. 143-214.1: 143-215.1: 143-215. 3(a)(1). 

Mil WATER QUALITY MANAGEMENT PLAiNS 

(a) In implementing the water qualit}' standards to 
protect the existing uses [as defined by Rule .0202 of this 
Section] of the waters of the state or the water quality 
which supports those uses, the Commission shall develop 
water qualit)- management plans on a priority basis to 
attain, maintain or enhance water quality throughout the 
state. Additional specific actions deemed necessary by the 
Commission to protect the water quality or the existing uses 
of the waters of the state shall be specified in Paragraph fb) 
of this Rule. These actions may include anything within the 
powers of the Commission. The Commission may also 
consider local actions which have been taken to protect a 
waterbody in determining the appropriate protection options 
to be incorporated into the water quality management plan. 

(b) All waters determined by the Commission to be 
protected by a water quality management plan are listed 
with specific actions as follows: 

(1) The Lockwoods Folly River Area (Lumber River 
Basin), which includes all waters of the lower 
Lockwoods Folly River in an area extending 
north from the Intracoastal Watervvay to a line 
extending from Genoes Point to Mullet Creek, 
shall be protected by the specific actions de- 
scribed in Subparagraphs f4^ Parts (A) through 
(#) (E) of this Paragraph. Subparagraph. 
fi^(A) New development activities within 575" of 
the mean high water line which require a 
Sedimentation Erosion Control Plan 
or a CAMA major development 
permit must compl> with the low 
density option of the coastal Storm- 
water Runoff Disposal Rules [as 
specified in 15A NCAC 2H 



.1005(2)(a)]. 
f3)(B} New or expanded NPDES permits shall be 
issued only for non-domestic, 
non-industrial process type discharges 
(such as non-industrial process cooling or 
seafood processing discharges). A public 
hearing is mandatory for any proposed 
(new or expanded) NPDES permit to this 
protected area. 
< ^(C) New non-discharge permits shall be re- 
quired to meet reduced loading rates and 
increased buffer zones, to be determined 
on a case-by-case basis. 
f44(D) New or e.xpanded marinas must be located 

in upland basin areas. 
f§->(E) No dredge or fill acti\ities shall be allowed 
where significant shellfish or submerged 
aquatic %egetation bed resources occur, 
except for maintenance dredging, such as 
that required to maintain access to existing 
channels and facilities located within the 
protected area or maintenance dredging for 
activities such as agriculture. 
(2) Thorpe Reservoir and its tributaries in the Jack- 
son County portion of the little Tennessee River 
Basin shall be managed as follows to protect 
existing water qualirs' which is higher than the 
standards: 

(A) New or expanded wastewater discharges to 
Thorpe Reservoir and all tributaries drain- 
ing to the reser\'oir shall comply with the 
foUowingi 

(i) Discharges from new single family 
residences shall be prohibited. 
Those that must discharge shall 
install a septic tank, dual or recircu- 
lating sand filters, disinfection and 
step aeration, 
(ii) All new NPDES wastewater dis- 
charges (except single family resi- 
dences) shall be required to provide 
the treatment described below: 
(1) Ox\ gen Consuming Wastes: 
Effluent limitations shall be 
as follows: BOD = 5 mg/1. 
NH3-N = 2mg/l and DO = 
6mg/l. More stringent limi- 
tations shall be set, if neces- 



sarv, to ensure that the cu- 
mulative pollutant discharge 
of oxygen-consuming wastes 
shall not cause the DO to 
drop more than 0.5 mg/1 be- 
low background levels, and 
in no case below the stan- 
dard. WTiere background 
information is not readily 



976 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



PROPOSED RULES 



available, evaluations shall 
assume a percent saturation 
determined by staff to be 
generally applicable to that 
hvdroenvironment. 
(TI) Total Suspended Solids: Dis- 
charges of total suspended 
solids (TSS) shall be limited 
to effluent concentrations of 
10 mg/1. 

fill) Disinfection: Alternative 

methods to chlorination shall 
be required, except that sin- 
gle family residences may 
use chlorination if other op- 
tions are not economically 
feasible. 

(IV) Emergency Requirements: 
Failsafe treatment designs 
shall be employed, including 
stand-by power capability for 
entire treatment works, dual 
train design for all treatment 
designs. 
("V) Volume: The total volume of 
treated wastewater for all 
discharges combined shall not 
exceed 50 percent of the total 
instream flow under 7010 
conditions. 

(VI) Nutrients: Where nutrient 
overenrichment is projected 
to be a concern, appropriate 
effluent limitations will be set 
for phosphorus or nitrogen. 
or both. 
(VII) Toxic substances: In cases 



where complex wastes (those 
containing or potentially con- 
taining toxicants) may be 
present In a discharge, a 
safety factor shall be applied 
to any chemical or whole 
effluent toxicity allocation. 
The limit for a specific 
chemical constituent shall be 
allocated at one-half of the 
normal standard at design 
conditions. Whole effluent 
toxicity shall be allocated to 
protect for chronic toxicity at 
an effluent concentration 
equal to twice that which is 
acceptable under design con- 
ditions. In all instances there 
may be no acute toxicity in 
an effluent concentration of 



90 percent as measured by 
the North Carolina "Pass/Fail 
Methodology for Determining 
Acute Toxicity in a Single 
Effluent Concentration". 
Ammonia toxicity shall be 
evaluated according to EPA 
guidelines promulgated in the 
Ammonia Criteria Develop- 
ment Document (1986); EPA 
document number 440/5-85- 
001; NTIS number 9B85- 



227114; July 29^ 1985 (50 
FR 30784). 
(iii) All expanded NPDES wastewater 
discharges in High Quality Waters 
shall be required to provide the 
treatment described in Sub-Part 
(b)(1)(B) of this Rule, except for 
those existing discharges which 
expand with no increase in permit- 
ted pollutant loading. 
(B) Thorpe Reservoir and its tributaries are 
subject to the antidegradation provisions of 
Rule .0201(a)-(c) of this Section to protect 
water quality higher than the standards . 

Authority G.S. 143-214.1; 143-215. 8A. 



.0303 

(a) 
places: 
(1) 



LITTLE TENN RIVER BASIN AND 
SAVANNAH RIVER DRAINAGE AREA 

Tlie schedule may be inspected at the following 



Clerk of Court: 
Clay County 
Graham County 
Jackson County 
Macon County 
Swain County 
Transylvania County 
(2) North Carolina Department of Environment, 
Health, and Natural Resources 
Asheville Regional Office 
Interchange Building 
59 Woodfin Place 
Asheville. North Carolina. 

(b) Unnamed Streams. Such streams entering Georgia or 
Tennessee shall be classified "C Tr. " Such streams in the 
Savannah River drainage area entering South Carolina shall 
be classified "B Tr. " 

(c) The Little Tennessee River Basin and Savannah 
River Drainage Area Schedule of Classifications and Water 
Quality Standards was amended effective: 

(1) February 16. 1977; 

(2) March 1, 1977; 

(3) July 13, 1980; 

(4) February 1, 1986; 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



977 



PROPOSED RULES 



(5) October 1. 1987; 

(6) March 1, 1989: 

(7) January 1. 1990; 

(8) July 1, 1990; 

(9) August 1, 1990; 

(10) March 1, 1991; 

(11) August 3, 1992; 

(12) February 1, 1993; 

(13) August 1,1994; 

(14) September 1, \m^ 1996; 

(15) August 1. 1998; 

(d) The Schedule of Classifications of Water Quality 
Standards for the Little Tennessee Basin and Savannah 
Ri\er Drainage Area was amended effective March 1 , 1 989 
as follows: 

(1) Nantahala River (Index No. 2-57) from source to 
the backwaters of Nantahala Lake and all tribu- 
tary waters were reclassified from Class B-trout, 
Class C-trout and Class C to Class B-trout ORW, 
Class C-trout ORW and Class C ORW. 

(2) Chattooga River (Index No. 3) including Scots- 
man Creek, Overflow Creek, Big Creek, Talley 
Mill Creek and all tributary waters were reclassi- 
fied from Class B-trout, Class C-trout and Class 
C to Class B-trout ORW. Class C-trout ORW 
and Class C ORW and Clear Cre^k and all 
tributary waters were reclassified from Class 
C-trout and Class C to Class B-trout and Class B. 

(e) The Schedule of Classifications and Water Quality 
Standards for the Little Tennessee River Basin and Savan- 
nah River Drainage Area was amended effective January 1 , 
1990 as follows: 

(1) North Fork Cowe«ta Creek (Index No. 2-10-4) 
and Falls Branch (Index No. 2-10-4-1) were 
reclassified from Class C to Class B. 

(2) Bumingtown Creek (Index No. 2-38) was reclas- 
sified from C-trout to B-trout. 

(f) The Schedule of Classifications and Water Quality 
Standards for the Little Tennessee River Basin and Savan- 
nah River Drainage Area was amended effective July 1, 

1990 by the reclassification of Alarka Creek (Index No. 
2-69) from source to Upper Long Creek (Index No. 2-69-2) 
including all tributaries from Classes C and C Tr to Classes 
C HQW and C Tr HQW. 

(g) The Schedule of Classifications and Water Quality 
Standards for the Little Tennessee River Basin and Savan- 
nah Riser Drainage Area was amended effectne March 1 , 

1991 as follows: 

(1) Cartoogechaye Creek [Index Nos. 2-19-(l) and 
2-19-(16)] from Gibson Cove Branch to bridge at 
U.S. Hwy. 23 and 441 and from the bridge at 
U.S. Hwy. 23 and 441 to the Little Tennessee 
River was reclassified from Classes WS-III Tr 
and C Tr to Classes WS-III and B Tr and B Tr 
respectively. 

(2) Coweeta Creek (Index Nos. 2-10) from its source 
to the Little Tennessee River including all tribu- 



taries except Dryman Fork (Index No. 2-10-3) 

and North Fork Coweeta Creek (Index No. 

2-10^) was reclassified from Classes C and C Tr 

to Classes B and B Tr. 
(h) The Schedule of Classifications and Water Quality 
Standards for the Little Tennessee River Basin and Savan- 
nah River Drainage Area was amended effective August 3, 
1992 with the reclassification of all water supply waters 
(waters with a primary classification of WS-I. WS-U or 
WS-in). These waters were reclassified to WS-I, WS-H, 
WS-m, WS-IV or WS-V as defmed in the revised water 
supply prcitection rules. (15A NCAC 2B .0100, .0200 and 
.0300) which became effective on August 3, 1992. In some 
cases, streams with primary classifications other than WS 
were reclassified to a WS classification due to their proxim- 
ity and linkage to water supply waters. In other cases, 
waters were reclassified from a WS classification to an 
alternate appropriate primary classification after being 
identified as downstream of a water supply intake or 
identified as not being used for water supply purposes. 

(i) TTie Schedule of Classifications and Water Quality 
Standards for the Little Tennessee River Basin and Savan- 
nah River Drainage Area has been amended effective 
February 1, 1993 as follows: 

(1) BearAallow Creek from its source to 2.3 miles 
upstream of the Toxaway River [Index No. 4-7- 
(1)] was revised to indicate the applicafion of an 
additional management strategy (referencing 15A 
NCAC 2B .0201(d) to protect downstream wa- 
ters; and 

(2) the Tuckaseegee River from its source to Tennes- 
see Creek [Index No. 2-79-(0.5)] including all 
tributaries was reclassified from Classes WS- 
III&B Tr HQW, WS-III HQW and WS-III to 
Classes WS-IU Tr ORW and WS-III ORW. 

(j) The Schedule of Classifications and Water Quality 
Standards for the Little Tennessee River Basin and Savan- 
nah River Drainage Area was amended effective August 1 , 
1994 with the reclassification of Deep Creek [Index Nos. 2- 
79-63-(l) and 2-79-63-(16)] from its source to the Great 
Smokey Mountains National Park Boundary including 
tributaries from Classes C Tr. B Tr and C Tr HQW to 
Classes WS-II Tr and WS-II Tr CA. 

(k) The Schedule of Classifications and Water Quality 
Standards for the Little Tennessee River Basin and Savan- 
nah River Drainage Area uas amended effective September 
1, 1996 as follows: 

(1) Deep Creek from the Great Srnok}' Mountains 
National Park Boundarj' to the Tuckasegee River 
[Index no. 2-79-63-(21)] was reclassified from 
Class C Tr to Class B Tr; and 

(2) the Tuckasegee River from the West Fork 
Tuckasegee River to Savannah Creek and from 
Macks Town Branch to Cochran Branch [Index 
Nos. 2-79-(24), 2-79(29.5) and 2-79-(38)] was 
reclassified from Classes WS-m Tr, WS-IU Tr 
CA and C to Classes WS-III&B Tr. WS-III&B 



978 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



PROPOSED RULES 



Tr CA and B. 
(1) The Schedule of Classifications and Water Quality 
Standards for the Little Tennessee River Basin and Savan- 
nah River Drainage Area was amended effective August \^ 
1998 with the reclassifications of Thorpe Reservoir (Lake 
Glenville), Hurricane Creek, and Laurel Branch (Index 
Nos. 2-79-23-(l), 2 -79-23-2, and 2-79-23-2-1 respectively) 
from classes WS-HI&B. WS-HI Tr and WS-III to classes 
WS-III&B HOW, WS-in Tr HOW, and WS-in HQW. 

Authority G.S. 143-214.1; 143-215.1; 143-215. 3(a)(1). 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the DEHNR - Soil and Water Conser- 
vation Commission intends to amend rules cited as 15A 
NCAC 6E .0002 - .0003. Notice of Rule-making Proceed- 
ings was published in the Register on July 15, 1996. 

Proposed Effective Date: April I, 1997 

Instructions on How to Demand a Public Hearing (must 
be requested in writing within 15 days of notice): Any 
person requesting that the Soil and Water Conservation 
Commission conduct public hearing on any of these pro- 
posed amendments must submit a written request to Vernon 
Cox, Division of Soil and Water Conservation, PO Box 
27687, Raleigh, NC 27611 by October 16, 1996. Tlie 
request must specify which rule the hearing is being 
requested on. Mail written requests must be postmarked no 
later than October 16, 1996. 

Reason for Proposed Action: As the Agriculture Cost 
Share Program has expanded, the number of contracts 
processed by the staff of the Division of Soil and Water 
Conservation (DSWC) has increased dramatically, with a 
significant number of contracts arriving just before the 
deadline for Soil and Water Conservation Districts to 
encumber funds to contracts. The proposed rule change 
will amend the guidelines for allocating cost share funds by 
changing the deadline for Districts to encumber finds, 
request to retain unencumbered funds, and to request 
additional cost share funds from the Commission. Changing 
the dates by which these activities will occur will provide 
the staff of the DSWC additional time needed to process the 
contracts in order to meet the regulatory deadlines of the 
program. 

Comment Procedures: All persons interested in these 
proposed amendments are encouraged to submit written 
comments. Cominents must be postmarked by October 16, 
1996 and submitted to Vernon Cox, Division of Soil and 
Water Conservation, PO Box 27687, Raleigh, NC 27611. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. Tliese Rules 



do not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 6 - SOIL AND WATER CONSERVATION 
COMMISSION 

SUBCHAPTER 6E - AGRICULTURE COST SHARE 

PROGRAM FOR NONPOCMT SOURCE 

POLLUTION CONTROL 

.0002 DEFINmONS FOR SUBCHAPTER 6E 

(a) Agriculture Nonfxjint Source (NFS) Pollution means 
pollution originating from a diffuse source as a result of 
agricultural activities related to crop production, animal 
production units and land application of waste materials. 

(b) Allocation means the annual share of the state's 
appropriation to participating districts. 

(c) Annual Agreement (AA) means a binding agreement 
between the district and the applicant that provides for cost 
sharing for installing best management practices and 
maintenance of the best management practices. 

(d) Applicant means a person(s) who applies for best 
management practice cost sharing monies from the district. 

(e) Average Costs means the calculated cost, determined 
by averaging recent actual costs and current cost estimates 
necessary for best management practice implementation. 
Actual costs include labor, supplies, and other direct costs 
required for physical installation of a practice. 

(f) Best Management Practice (BMP) means a structural 
or nonstructural management based practice used singularly 
or in combination to reduce nonpoint source inputs to 
receiving waters. 

(g) Conservation Plan of Operation (CPO) means a 
written plan scheduling the applicant's decisions concerning 
land use, and both cost shared and non-cost shared BMP's 
to be installed and maintained on the operating unit. 

(h) Cost Share Agreement means an annual or long term 
agreement between the applicant and the district which 
defines the BMP's to be cost shared, rate and amount of 
payment, minimum practice life, and date of BMP installa- 
tion. The agreement also states that the recipient will 
maintain and repair the practice(s) for the specified mini- 
mum life of the practice. 

(i) Cost Share Incentive (CSl) means a predetermined 
fixed annual payment paid to an apphcant for implementing 
a BMP in lieu of a full 75 percent cost share. 

Cost Share Rate means a cost share percentage paid 
to an applicant for implementing BMP's. 

(k) Detailed Implementation Plan means the plan 
approved by the commission that specifies the guidelines for 
the current program year; including, BMP's that will be 
eligible for cost sharing and the minimum life expectancy 
of those practices. 

(1) District BMP means a BMP designated by a district 
to reduce the delivery of agricultural NPS pollution and 
which is reviewed and approved by the Division to be 
technically adequate prior to funding. 



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PROPOSED RULES 



(m) Encumbered Funds means monies from a district's 
allocation which have been committed to an applicant after 
initial approval of the cost share agreement. 

(n) Full Time Equivalent (FTE) means 2,080 hours per 
annum which equals one full time technical position. 

(o) In-kind Contribution means a contribution by the 
applicant towards the implementation of BMP's. In-kind 
contributions shall be approved by the district and can 
include but not be limited to labor, fuel, machinery use, 
and acceptable supplies and materials. 

(p) Landowner means any namral person or other legal 
entity, including a governmental agency, who holds either 
an estate of freehold (such as a fee simple absolute or a life 
estate) or an estate for years or from year to year in land, 
but does not include an estate at will or by sufferance in 
land. Furthermore, a governmental or quasi-governmental 
agency such as a drainage district or a soil and water 
conser\ation district, or any such agency, by whatever 
name called, exercising similar powers for similar pur- 
poses, can be a landowner for the purposes of these Rules 
if the governmental agency holds an easement in land. 

(q) Long Term Agreement (LTA) means a binding 
agreement between the district and the applicant that 
includes the plan of operation and which sets forth cost 
sharing for BMP installation and maintenance. The LTA 
shall have a maximum contract life of three years for BMP 
installation. The district must perform an annual status 
review during the installation period. 

(r) Program Year means the period from July 1 through 



June 30 for which funds are allocated to districts. 

(s) Proper Maintenance means that a practice(s) is being 
maintained such that the practice(s) is successfully perform- 
ing the function for which it was originally implemented. 

(t) Soil Loss Tolerance (T) means the maximum allow- 
able annual soil erosion rate to maintain the soil resource 
base, depending on soil type. 

(u) Strategy Plan means the annual plan for the N.C. 
Agriculture Cost Share Program for Nonpoint Source 
Pollution Control to be developed by each district. The 
plan identifies pollution treatment needs and the level of 
cost sharing and technical assistance monies required to 
address those annual needs in the respective district. 

(v) Technical Representative of the district means a 
person designated by the district to act on their behalf who 
participates in the planning, design, implementation and 
inspection of BMP's. These practices shall be technically 
reviewed by the Division. The district chairman shall 
certify that the technical representative has properly 
planned, designed and inspected the BMP's. 

(w) Unencumbered Funds means the portion of the 
allocation to each district which has not been committed for 
cost sharing by the fest third Wednesday of March Febru- 
ary of the current fiscal year. 

Authoritx G.S. 139-3; 143-215.74; 143B-294. 



.0003 ALLOCATION GUffiELEMES AND PROCEDURES 

(a) The commission will allocate the cost share funds to the districts in the designated program areas. To receive fund 
allocations, each district designated eligible by the commission is required to submit an annual strategy plan to the 
commission at the beginning of each fiscal year. Funds may be allocated to each district for any or all of the following 
purposes: cost share payments, cost share incentive payments, technical assistance, or administrative assistance Use of 
funds for technical and administrative assistance must follow the guidelines set forth in Rule .0006 of this Subchapter. 

fb) Funds wiU be allocated to the districts at the beginning of the fiscal year. Districts will be allocated monies based 
on the identified level of agricultural related nonpoint source pollution problems and the respective district's BMP 
installation goals and available technical services as demonstrated in the district annual strategy plan. The allocation method 
used for disbursement of funds is based on the relative position of each respective district for those parameters established 
by the Division and approved by the commission. These parameters are designed to reflect the agricultural nonpoint source 
problems, the conservation needs, and the technical assistance available in the area of the state included in the current 
program year funding. Each district is assigned points for its relative position for each parameter and also for technical 
assistance hired under the 50:50 cost share (Rule .0006 of this Subchapter) and the points are totaled and proportioned to 
the total dollars available under the current program year funding. 



(1) 



(2) 



(3) 



Thus, 



Parameter -I- District Technical = Total Points 

Points Assistance Points 

Percentage Total Total Dollars Available 

Points Each x Dollars = to 

District Available Each District 

Because of other program restraints or increased demands for funds a district may request fewer (Group A) or 

more (Group B) dollars than are available. 



Dollars Dollars 

Available Per - Requested by 

District, (2) the District 

(A) Group A Districts request less than amount (2). 



Difference 



980 



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September 16, 1996 



11:12 



PROPOSED RULES 



(B) Group B Districts request more than amount (2). 

(4) The dollars in excess of Group A District requests are apportioned to Group B Districts in the following maimer: 
Total of Those Percentage of Total Amount 

Funds in Excess Excess Requests by Added 

of that X each Group B = to 

Requested by District Group B 

Group A Districts Request 

(5) Therefore, there are two categories of districts in the allocation method: 

(A) Those receiving 100 percent of request (Group A). 

(B) Those receiving less than 100 percent of requests (Group B) who receive amounts (2) plus (4). 

(c) 95 percent of the total program fiinding will be allotted to the district accounts in the initial allocation. The Division 
will retain five percent of the total funding in a contingency fund to be allocated at a later date as determined by the 
commission. 

(d) Cost share funds allocated to a district during a fiscal year that have not been encumbered to an agreement by the 
fifst third Wednesday of March February of that fiscal year will be subject to recall by the commission. 

(e) Districts with unencumbered funds as of the fest third Wednesday of March February of the current fiscal year may 
request, in writing to the commission, to retain those funds. Reque s t s mu s t be roooivod by tho commis s ion, to retain those 
fiinds. Requests must be received by the commission Division no later than 9:30 a.m. on the s e cond first Wednesday of 
March of the current fiscal year. 

(f) Districts may apply for additional funds to the commission by written application to be received by the Division no 
later than 9:30 a.m. on the scxiond first Wednesday in March. 

(g) The amount of recalled funds shall be divided among the eligible districts applying for reallocation based on projected 
needs as outlined in the written applications received by the commission as stated in Rule .0003(e) of this Subchapter. The 
Division will notify the commission by the third Wednesday in March of the current balance of funding and the district's 
requests to retain present allocation and/or and to obtain new funds. The commission shall decide the amount of funds 
reallocated to each district and the districts will be notified of their final allocation by the fourth Wednesday of March. 

(h) CPO's that encumber funds under the current year must be submitted to the Division by 9:30 a.m. on the first 
Wednesday in June. 



Authority G.S. 139-4; 139-8: 143-215.74; 143B-294. 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Coastal Resources Com- 
mission intends to amend rule cited as 15A NCAC 7H 
.0309. Notice of Rule-making Proceedings was published 
in the Register on July 15, 1996. 

Proposed Effective Date: August 1, 1998 

A Public Hearing will be conducted at 4:00 p.m. on 
November 21, 1996 at Ramada Inn, 1701 South Virginia 
Dare Trail, Kill Devil Hills, NC 27948. 

Reason for Proposed Action: TJiis amendment is being 
added in response to requests by pier owners for consider- 
ation of the hardship created by the current rules, and the 
benefits provided by their facilities. This Rule will allow 
replacement of existing pier houses in the Ocean Hazard 
AEC if they are destroyed. Current rules do not allow 
replacement of structures in the Ocean Hazard AEC that do 
not conform to current requirements for setbacks, etc. The 
new rule will inake an exception for pier houses associated 
with piers providing public access to the beaches and ocean 
waters. The proposed amendment to pier house rules will 
in effect grandfather existing pier houses as of January 1, 



1996. Tlie new rule will allow those structures to be 
maintained or replaced in their current configuration, so as 
not to put an undue financial burden on the owner by 
eliminating the use of the structure. 

Comment Procedures: All person interested in this matter 
are invited to attend the public hearings. The Coastal 
Resources Commission will receive mailed written comments 
postmarked no later tlxan November 21 , 1996. Any person 
desiring to present lengthy comtnents is requested to submit 
a written statement for inclusion in the record of proceed- 
ings at the public hearings. Please mail comments to the 
Coastal Resources Commission, do Preston Pate, Assistant 
Director, EHNR Division of Coastal Management, PO Box 
769, Morehead City, NC 28557, (919) 726-7021. 

Fiscal Note: This- Rule does not affect the expenditures or 
revenues of state or local government finds. This Rule does 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GUIDELINES FOR 
AREAS OF ENVIRONMENTAL CONCERN 



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PROPOSED RULES 



SECTION .0300 - OCEAN HAZARD AREAS 

.0309 USE STANDARDS FOR OCEAN HAZARD 
AREAS: EXCEPTIONS 

(a) The following types of development may be permit- 
ted seaward of the oceanfront setback requirements of Rule 
.0306(a) of the Subchapter if all other provisions of this 
Subchapter and other state and local regulations are met: 

(1) campgrounds that do not involve substantial 
permanent structures; 

(2) parking areas with clay, packed sand or similar 
surfaces; 

(3) outdoor tennis courts; 

(4) elevated decks not exceeding a footprint of 500 
square feet; 

(5) beach accessways consistent with Rule .0308(c) 
of this Subchapter; 

(6) unenclosed, uninhabitable gazebos with a foot- 
print of 2(X) square feet or less; 

(7) uninhabitable, single-story storage sheds with a 
footprint of 200 square feet or less; 

(8) temporary' amusement stands; and 

(9) swimming pools. 

In all cases, this development shall only be permitted if it 
is landward of the vegetation line; involves no significant 
alteration or removal of primary or frontal dunes or the 
dune vegetation; has overwalks to protect any existing 
dunes; is not essential to the continued existence or use of 
an associated principal development; is not required to 
satisfy minimum requirements of local zoning, subdivision 
or health regulations; and meets all other non-setback 
requirements of this Subchapter. 

(b) Where strict application of the oceanfront setback 
requirements of Rule .0306(a) of this Subchapter would 
preclude placement of permanent substantial structures on 
lots existing as of June 1, 1979, single family residential 
structures may be permitted seaward of the applicable 
setback line in ocean erodible areas, but not inlet hazard 
areas, if each of the following conditions are met: 

(1) TTie development is set back from the ocean the 
maximum feasible distance possible on the exist- 
ing lot and the development is designed to mini- 
mize encroachment into the setback area; 

(2) The development is at least 60 feet landward of 
the vegetation line; 

(3) The development is not located on or in front of 
a frontal dune, but is entirely behind the land- 
ward toe of the frontal dune; 

(4) The development incorporates each of the follow- 
ing design standards, which are In addition to 
those required by Rule .0308(d) of this Subchap- 
ter. 

(A) All pilings have a tip penetration that 
extends to at least four feet below mean 
sea level; 

(B) The footprint of the structure be no more 
than 1,000 square feet or 10 percent of the 



lot size, whichever is greater. 
(5) Ail other provisions of this Subchapter and other 
state and local regulations are met. If the devel- 
opment is to be serviced by an on-site waste 
disposal system, a copy of a vaUd permit for such 
a system must be submitted as part of the CAMA 
permit application. 

(c) Reconfiguration of lots and projects that have a 
grandfather status under Paragraph (b) of this Rule shall be 
allowed provided that the following conditions are met: 

(1) Development is setback from the first line of 
stable natural vegetation a distance no less than 
that required by the applicable exception; 

(2) Reconfiguration will not result in an increase in 
the number of buildable lots within the Ocean 
Hazard AEC or have other adverse environmental 
consequences; and 

(3) Development on lots qualifying for the exception 
in Paragraph (b) of this Rule must meet the 
requirements of Paragraphs (1) through (5) of 
that Paragraph. 

For the purposes of this Rule, an existing lot is a lot or 
tract of land which, as of June 1, 1979, is specifically 
described in a recorded plat and which cannot be enlarged 
by combining the lot or tract of land with a contiguous 
lot(s) or tract(s) of land under the same ownership. The 
footprint is defined as the greatest exterior dimensions of 
the structure, including covered stairways, when extended 
to ground level. 

(d) The following types of water dependent development 
shall be permitted seaward of the oceanfront setback 
requirements of Rule .0306(a) of this Section if all other 
provisions of this Subchapter and other state and local 
regulations are met; 

(1) piers providing pubhc access (excluding any pier 
house, office, or other enclosed areas); and 

(2) maintenance and replacement of existing state- 
owned bridges and causeways and accessways to 
such bridges. 

(e) Where application of the oceanfront setback require- 
ments of Rule .0306(a) of this Section would preclude 
replacement of a pier house associated with an existing 
ocean pier, replacement of the pier house shall be permitted 
if each of the following conditions are met: 

(1) The associated ocean pier provides public access 
for fishing or other recreational purposes whether 
on a commercial, public, or nonprofit basis: 

(2) The pier house is set back from the ocean the 
maximum feasible distance while maintaining 
existing parking and sewage treatment facilities 
and is designed to reduce encroachment into the 
setback area; 

(3) The pier house shall not be enlarged beyond its 
original dimensions as of January J_i 1996; 

(4) TTie pier house shall be rebuilt to comply with all 
other provisions of this Subchapter; and 

(5) If the associated pier has been destroyed or 



982 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



PROPOSED RULES 



rendered unusable, replacement of the pier house 
shall be permitted only if the pier is also being 
replaced and returned to its original function. 

Authority G.S. 113A-107(a); 113A- 107(b); 

113A-n3(b)(6)a.; 1 13A-1 13(b)(6)b.; 113A-113(b)(6)d.; 
113A-124. 

Notice is hereby given in accordance with G.S. 
1508-21. 2 that the North Carolina Wildlife Resources 
Commission intends to amend rule cited as 15A NCAC lOB 
.0113. Notice of Rule-making Proceedings was published 
in the Register on July 1, 1996. 

Proposed Effective Date: July 1. 1997 

A Public Hearing will be conducted at 10:00 a.m. on 
October 2, 1996 at the Archdale Building, 512 N. Salisbury 
Street, 3rd Floor Conference Room, Raleigh, NC 

Reason for Proposed Action: To modify big game tagging 
regulations and procedures. 

Comment Procedures: Interested persons may present 
their views either orally or in writing at the hearing. In 
addition, the record of hearing will be open for receipt of 
written comments from September 16, 1996 through October 
16, 1996. Such written comments must be delivered or 
mailed to the North Carolina Wildlife Resources Commis- 
sion, 512 N. Salisbury Street, Raleigh, NC 27604- 1 1 88. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government finds. This Rule does 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER lOB - HUNTING AND 
TRAPPING 



in those cases where the kill occurs in a remote area which 
prevents the animal from being transported as an entire 
carcass. In these cases, the carcass may be tagged, 
skinned, quartered, and transported to the wildlife coopera- 
tor agent for reporting or reported within 24 hours through 
the Big Game Telephone Reporting System. A wildlife 
cooperator agent located within the immediate area of open 
season will supply a big game kill report card in duplicate 
or an authorization number may be obtained through the 
Big Game Telephone Reporting System. The report card 
must shall be completed to show the information called for 
thereon. All V i ild turkey must bo rogiatorod through the toll 
froo Big Game Telephone Reporting Sy s tom, before they 
ar e skinn e d or dr esse d or dism e mb e r e d for consumption. 
The tag shall be affixed to the carcass at a location and in 
such manner as to be visible upon inspection from the 
outside, and it is unlawful to affix the tag at any location or 
in any manner so as to conceal it from visibility upon 
ordinary inspection. It is unlawful to remove the tag from 
the carcass prior to the kill being properly reported either 
through completion of the report card or through the Big 
Game Telephone Reporting System or at any time thereafter 
until the carcass is finally skinned or dressed for consump- 
tion. The authorization number given through the Big 
Game Telephone Rejjorting System or the duplicate copy of 
the big game kill report card must be retained by the hunter 
and shall thereafter constitute his permit to continue in 
possession of the carcass. Otherwise, the continued 
possession of the bear, wild turkey, deer or wild boar shall 
be unlawful. 

Persons who are by law exempt from the big game hunting 
license are not required to tag the carcass but shall report 
each kill as above required, and, in lieu of the tag, the 
word "exempt" together with the reason therefor (parent's 
license, landowner, agricultural lessee) shall be written on 
the original of the big game kill report card. 
Any big game tag which has been detached from the tag 
card issued with the big game license prior to the killing 
and tagging of the big game animal may shall be seized by 
a wildlife enforcement officer, officer, if there is evidence 
of prior use. 

Authority G.S. 113-134; 113-270.3; 113-276.1. 



SECTION .0100 - GENERAL REGULATIONS 



4:4:^^4:4:4c4::ic:f::ic:):4c4::t:4c4:4: 



.0113 BIG GAME KILL REPORTS 

The carcass of each bear, wild turkey, deer [except 
antlerless deer harvested on areas in the Deer Management 
Assistance Program as described in G.S. 113-291. 2(e)] aad 
wild boar shall be tagged at the site of the kill with the 
appropriate big game tag which has been validated by 
cutting out the month and day of the kill. All harvested 
bear, deer, turkey, and wild boar must be registered at a 
wildlife cooperator agent or reported through the toll free 
Big Game Telephone Reporting System, before they are 
skinned or dressed or dismembered for consumption except 



Notice is hereby given in accordance with G.S. 
1508-21. 2 tfiat the North Carolina Wildlife Resources 
Comjnission intends to ainend rule cited as 15A NCAC 108 
.0115. Notice of Rule-making Proceedings was published 
in the Register on July 1 , 1996. 

Proposed Effective Date: March 2, 1997 



Public Hearing.- 

291.1(e). 



Not required pursuant to G.S. 113- 



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September 16, 1996 



983 



PROPOSED RULES 



Reason for Proposed Action: To regulate hunting of deer 
with shining lights in Hoke County. 

Comment Procedures: Interested persons may present 
their views in writing. In addition, the record will be open 
for receipt of written comments from September 16, 1996 
through October 16, 1996. Written comments must be 
delivered or mailed to the North Carolina Wildlife Re- 
sources Convnission, 512 N. Salisbury Street, Raleigh, NC 
27604-1188. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government finds. This Rule does 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

SECTION .0100 - GENERAL REGULATIONS 

.0115 SHINING LIGHTS IN DEER AREAS 

(a) It having been found upon sufficient evidence that 
certain areas frequented by deer are subject to substantial 
unlawful night deer hunting, or that residents in such areas 
have been greatly inconvenienced by persons shining lights 
on deer, or both, the shining of lights on deer in such areas 
is limited by Paragraphs fb) and (c) of this Rule, subject to 
the exceptions contained in Paragraph (d) of this Rule. 

(b) No person shall, between the hours of 11:00 p.m. 
and one-half hour before sunrise, intentionally shine a light 
upon a deer or intentionally sweep a light in search of deer 
in the indicated portions of the following counties: 

(1) Beaufort — entire county; 

(2) Bladen — entire county; 

(3) Brunswick — entire county; 

(4) Camden — entire county; 

(5) Chowan — entire county; 

(6) Currituck — entire county; 

(7) Duplin — entire county; 

(8) Franklin — entire county; 

(9) Gates — entire county; 

(10) Greene — entire county; 

(11) Hertford — entire county; 
■(45^ Hoke entire county; 

(12) f+^Hyde — entire county; 

( 13) f444Jones — entire county; 

(14) fl-§^Lenoir — entire county; 

(15) fi^Martin — entire county; 

(16) fl^Nash — entire county; 

(17) f+^Pamlico — entire county; 

(18) f4^Pasquotank — entire county; 

( 19) f30) Pender — entire county; 

(20) (34^Perquimans — entire county; 

(21) (SS^Pitt -- entire county; 

(22) f354Sampson — entire county; 

(23) (54)Tyrrell — entire county; 

(24) (S^Vance — entire county; 

(25) (34^Wake — entire county; 

(26) (3^Warren -- entire county; 



(27) (3*) Washington — entire county; 

(28) (39) Wayne — entire county. 

(c) No person shall, between the hours of one-half hour 
after sunset and one-half hour before suruise, intentionally 
shine a light upon a deer or intentionally sweep a light in 
search of deer in the indicated portions of the following 
counties: 



(1 

(2 
(3 
(4 
(5 
(6 

(7 
(8 
(9 
(10 
(11 
(12 
(13 
(14 
(15 
(16 
(17 
(18 
(19 
(20 
(21 
(22 
(23 
(24. 
(25 
(26 
(27) 
(28) 
(29) 
(30) 
(31) 
(32) 
(33) 
(34) 
(35) 
(36) 
(37) 
(38) 
(39) 
(40) 
(41) 
(42) 
(43) 
(44) 
(45) 
(46) 
(47) 
(48) 
(49) 



Alamance — entire county; 

Alexander — entire county; 

Alleghany — entire county; 

Anson — entire county; 

Ashe — entire county; 

Avery - that portion south and east of Highway 

221; 

Buncombe County — entire county; 

Burke — entire county; 

Cabarrus — entire county; 

Caswell — entire county; 

Catawba — entire county; 

Chatham — entire county; 

Clay — entire county; 

Cleveland — entire county; 

Cumberland — entire county; 

Davidson ~ entire county; 

Davie — entire county; 

Durham — entire county; 

Edgecombe — entire county; 

Forsyth County — entire county; 

Gaston — entire county; 

Granville — entire county; 

Guilford — entire county; 

Halifax — entire county; 

Harnett — entire county; 

Henderson — entire county; 

Hoke ~ entire county; 

(3^Iredell — entire county; 

(S^Johnston — entire county; 

(39)Lee — entire county; 

(5&)Lincoln — entire county; 

(34-)Macon — entire county; 

(33)McDowell — entire county; 

(^^Mecklenburg — entire county; 

(34)Mitchell — entire county; 

(5^Montgomery — entire county; 

(36)Northampton — entire county; 

(S^Orange County — entire county; 

(3^Person — entire county; 

(3^PoLk — entire county; 

(4&)Randolph — entire county; 

f44-)Robeson County — entire county; 

(43)Rockingham — entire county; 

(4^Rowan — entire county; 

(44)Rutherford — entire county; 

(45)Stanly — entire county; 

(46)tokes — entire county; 

(47^Surry — entire county; 

(48)Swain — entire county; 



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PROPOSED RULES 



(50) (49)Transylvania - entire county; 

(51) (§0)Union -- entire county; 

(52) (^Watauga - entire county; 

(53) {53) Yancey - entire county. 

(d) Paragraphs (b) and (c) of this Rule shall not be 
construed to prevent: 

(1) the lawful hunting of raccoon or opossum during 
open season with artificial lights designed or 
commoiJy used in taking raccoon and opossum at 
night; 

(2) the necessary shining of lights by landholders on 
their own lands; 

(3) the shining of lights necessary to normal travel 
by motor vehicles on roads or highways; or 

(4) the use of lights by campers and others who are 
legitimately in such areas for other reasons and 
who are not attempting to attract or to immobilize 
deer by the use of lights. 

Authority G.S. 113-134; 113-291.1; S.L. 1981, Ch. 410; 
S.L. 1981 (Second Session 1982), Ch. 1180. 

****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the DEHNR, Division of Parks and 
Recreation intends to adopt rule cited as 15 A NCAC 12B 
.1206. Notice of Rule-making Proceedings was published 
in the Register on December 15, 1995. 

Proposed Effective Date: April 1, 1997 

Public Hearings will be conducted at 7:00 p.m. on the 
following dates and locations: 

October 8, 1996 

59 Woodfin Place 

Ash evil I e Regional Office 

Asheville, NC 



October 9, 1996 

585 Waughton St. 
Winston-Salem, NC 

October 10, 1996 

1424 Carolina Avenue 

Washington Regional Office 

Washington. NC 

Reason for Proposed Action: The Division of Parks and 
Recreation fee structure was removed from the APA rules a 
few years ago and must be replaced. It has been a long 
standing division policy to keep rates charged for serx'ices 
m state parks comparable to those charged by other public 
agencies and private Industry. The proposed rates are 
based on a sur\'ey of other public and private park and 
recreation service providers. The division also needs the 
increased revenue to support increased costs associated with 
operating the state parks, such as the compliance with the 
new federal minimum wage law and the impact of inflation 
on utility bill and materials and supplies for routing mainte- 
nance. 

Comment Procedures: All persons interested in this matter 
are invited to attend the public hearings. The Division of 
Parks and Recreation will receive mailed written comments 
postmarked no later than October 16, 1996. Any person 
desiring to present lengthy comments is requested to submit 
a written statement for inclusion in the record of proceed- 
ings at the public hearings. Additional information con- 
cerning the hearings or the proposals may be obtained by 
contacting Ms. Carter Thompson , Division of Parks and 
Recreation. PO Box 27687, Raleigh, NC 27611-7687, (919) 
733-4181. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds. This Rule does 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 



CHAPTER 12 - PARKS AND RECREATION AREA RULES 

SUBCHAPTER 12B - PARKS AND RECREATION AREAS 

SECTION .1200 - MISCELLANEOUS 

.1206 FEES AND CHARGES 

The following fee schedule shall apply at all state parks, parkways, state lakes, state recreation areas, and natural areas 
under the stewardship of the Department, except for the N.C. Zoological Park. Payment of the appropriate fee shall be 
a prerequisite for the use of the public service facility or convenience provided. 



TYPE OF FACIUTY OR CONVENIENCE 



FEE 



m CAMPING 



(a) Campsites with electrical hookups, picnic table, and grill. 
Water, restrooms, and shower facilities also available. 

(b) Campsites with picnic table and grill. Water, restrooms. 



$ 17.00 (per family daily) 

$ 14.00 (senior citizens daily) (62 or older) 

$ 12.00 (per family daily) 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



985 



PROPOSED RULES 



and shower facilities also available. 

(c) Primitive, unimproved campsites with p it privies. Fresh 
water also available. 

(d) Primitive group tent camping, unimproved campsites with 
pit privies. 

(e) Improved Group Camping (water, restrooms and shower 
facilities available. 

(f) Group Lodge 

William R Umstead State Park 

(g) Group Camps 

til William B. Umstead State Park 



(ii) Singletary Lake State Park 



$ 10.00 (senior citizens daily) (62 or older) 
$ 8.00 (per family, daily) 

5 1.00 (per person, with $8.00 minimum) 

5 35.00 (per day/maximum capacity 35) 
% 90.00 (per day/maximum capacity 100) 

$ 30.00 (per day/maximum 25 people) 

Daily April. May. Sept.. Oct. 

$ 30.00 One Unit per day 

$ 75.00 Mess Hall p er day 

Weekly Only June thru August 

$375.00 Camp Crabtree 

$375.00 Camp Whispering Pines 

$425.00 Camp Lapihio 

Daily April. May. Sept.. Oct. 

5 95.00 Camp Ipecac or Loblolly 

$ 40.00 Cabin Unit p er day 

$ 75.00 Mess Hall p er day 



£2} 



£3} 

(4) 
(5] 



(8} 

iil 

(10) 

LLQ 

(12) 



Cabins (not available Dec. ; Feb.) (reservation only at 
Hanging Rock State Park and Morrow Mountain State Park.) 



SWIMMING/BATHHOUSE 
BOAT RAMPS 



ROWBOAT/CANOE RENTAL 



(6) PICNIC SHELTER RENTAL 
(by reservation only) 



m ADMISSION FEE 



HAMMOCKS BEACH FERRY 



COMMUNITY BUILDINGS 



SPECIAL ACTIVITY PERMIT 



Weekly Only June thru August 
$390.00 Camp Ipecac or Loblolly 

Nov.. Dec.. Feb.. March 
Camp Loblolly available 
at Weekly or daily rates. 

$3(X).(X) (per week only from June to Labor 

Day) 

$320.00(perweekonly fromJime to Labor 

Day, with swimming privileges) 

$ 60.00 (per day ; rest of year) 

i 3.00 (per adult) 

$ 2.00 (per child, ages 3-12) 

$ 4.00 (per boat) 

I 3.00 (for first hour) 

$ 1 .00 (for each additional hour) 

$ 20.00 (1-2 tables) 

$ 35.00 (3-4 tables) 

$ 50.00 (5-8 tables) 

$ 75.00 (9-12 tables) 

I 4.00 (per car) 

^ 3.00 (per car-senior citizens) (62 or 

older) 

$ 10.00 (per bus) 

$ 30.00 (for 10 daily passes) 

J 2.00 (per adult) 

$ 1.00 (per child, ages 6-12) 

$125.00 (per day) (includes 20 car passes 

where appropriate) 

^ 25.00 (permit fee plus any additional 

appropriate charges) 

$ 12.00 per day/per section 



CATCH AND RELEASE FISHING 

(Stone Mountain State Park) 

SUP RENTAL AND OTHER FEES FOR THE CAROUNA BEACH STATE PARK MARINA (All slip rental 



986 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



PROPOSED RULES 



fees shall be paid in ftill at the time the lease is executed.) 

(a) Transient, overnight dockage (no longer than 14 consecutive J 16.00 

days in any 30 day period.) 

Slip Rental (Fees charged according to term of lease and vessel size.) 



M 



£cl 



£d} 






25 feet and smaller $150.00 

26 feet to 35 feet $226.00 
36 feet to 42 feet $263.00 
43 feet to 45 feet $300.00 
Six month lease (runs 183 days from date executed) 

25 feet and smaller $ 720.00 

26 to 35 feet $1080.00 
36 to 42 feet $1260.00 
43 feet to 45 feet $1440.00 
Twelve month lease (runs 365 days from date executed) 

25 feet and smaller $1080.00 

26 to35 feet $1620.00 
36 feet to 42 feet $1890.00 
43 feet to 45 feet $2160.00 
Boat Launching Fee ^ 4.00 
Holding Tank Pump Out | 10.00 
Battery Charging Service J 3.00 



Authority G.S. 11 3-3 5(b). 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for Health 
Services intends to adopt rules cited as ISA NCAC ISA 
.0183 - .0187, .0620 - .0621; amend rules cited as 15A 
NCAC 18A .0134. .0136 - .0137, .0159, .0168 - .0169, 
.0173 - .0176, .0182, .0301 - .0302, .0401, .0421, .0424 
- .0425, .0614 ' .0618, .0901, .1301 - .1302 and .1319. 
Notice of Rule-making Proceedings was published in the 
Register on July 15. 1996. 

Proposed Effective Date: April 1, 1997 

A Public Hearing will be conducted at 1:30 pm on October 
3, 1996 at Room lA 201, Parker Lincoln Bldg. , Capital 
Blvd., Raleigh, NC 27604. 

Reason for Proposed Action: 

ISA NCAC 18A .0134, .0136 - .0137, .0159, .0168 - 
.0169, .0173 - .0176, .0182 - .0187 - Tlie agency and the 
Crustacea industry believe that changes in the existing 
Crustacea rules are needed so that Crustacea meat from out- 
of-state sources can be repacked. Tins activity is allowed 
in other states and puts the industry in North Carolina at a 
disadvantage. Other needed changes deal with heat 
processing, labeling, freezing and bacteriological standards. 
ISA NCAC 18A .0301, .0302, .0401, .0421, .0424 - 
.0425, .0614 - .0618, .0620 - .0621 and .0901 - The 
proposed changes in the Rules Governing the Sanitation of 
shellfish are needed to bring North Carolina's rules into 
conformity with the National Shellfish Sanitation Program 
guidelines which are administered by the US Food and 



Drug Administration. 

ISA NCAC 18A .1301, .1302, .1319 - Educational facilities 
are deemed to be inappropriately addressed in the institu- 
tional rules. 

Comment Procedures: All persons interested in these 
matters are invited to attend the public hearing. Written 
comments may be presented at the public hearing or 
submitted to Malcolm Blalock, Deputy Director, Division of 
Environmental Health. PO Box 27687, Raleigh, NC 27611- 
7687. All written comments must be received by October 
16, 1996. Persons who wish to speak at the hearing should 
contact Mr. Blalock at (919) 715-0929. Persons who call 
in advance of the hearing will be given priority on the 
speaker's list. Oral presentation lengths may be limited 
depending on the number of people that wish to speak at the 
public hearing. Only persons who have made comments 
will be allowed to speak at the Commission meeting. 
Comments made at the Commission meeting must either 
clarify previous comments or proposed changes from staff 
pursuant to comments made during the public hearing 
process. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules 
do not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 18 - ENVIRONMENfTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .0100 - HANDLING: PACKING: 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



987 



PROPOSED RULES 



REPACKING: AND SHIPPING OF CRUSTACEA 
AND CRUSTACEA MEAT 

.0134 DEFINmONS 

The following definitions shall apply throughout this 
Section; however, nothing in this Section shall be construed 
as expanding or restricting the definitions in G.S. 106-129 
and G.S. 106-130: 

(1) "Adulterated" as used in G.S. 106-129 means 
the following: 

(a) Any cooked Crustacea or Crustacea meat 
that have bocn picked, packed or re 
packed in a facility' v i 'hioh has not been 
pefm kted by the Division in accordanc e 
with th e se Rul e s; does not comply with 
these Rules; 

(b) Any cooked Crustacea or Crustacea meat 
which exceed the bacteriological stan- 
dards in Rule .0182 of this Section; 

(c) Any cooked Crustacea or Crustacea meat 
which are putrid or unfit for human 
consumption; 

(d) Any cooked Crustacea or Crustacea meat 
which have been exposed to any condi- 
tion whereby it may have become con- 
taminated; or 

(e) Any cooked Crustacea which contain any 
added substance, unless the substance is 
approved by the Division, the United 
States Food and Drug Administration or 
the North Carolina Department of .Agri- 
culture. 

(2) "Code date" means the date conspicuously 
placed on the container to mdicate the date that 
the product was packed. 

(3) "Cook" means to prepare or treat raw Crusta- 
cea by heating. 

(4) "Crustacea meat" means the meat of crabs, 
lobster, shrimp or crayfish. 

(5) "Division" means the Division of Environmen- 
tal Health or its authorized agent. 

(6) "Food-contact surface" means the parts of 
equipment, including auxiliary equipment, 
which may be in contact with the food being 
processed, or which may drain into the portion 
of equipment with which food is in contact. 

(7) "Fresh Crustacea" means a live, raw or frozen 
raw crab, lobster, shrimp or crayfish which 
shows no decomposition. 

(8) "Internal temperature" means the temperature 
of the product as opposed to the ambient tem- 
perature. 

(9) "Misbranded" as used in G.S. 106-130 means 
th e following: any container of cooked Crusta- 
cea or Crustacea meat which is not labeled in 
compliance with these Rules. 

(fr) Any container of cooked Crustacea or Crustacea 



meat which i s not labeled with a valid idcntifi 
cation numb e r award e d by r e gulator)' authority' 
of the state or oountP r ' of origin of th e cook e d 
crustacoa or Crustacea moat; or 

9si) j\ny container of cooked Crustacea or Crustacea 

m e at which i s not lab e l e d as required by th e s e 
Rul e s. 

(10) "Operating season" means the season of the 
year during which a Crustacea product is pro- 
cessed. 

(11) "Pasteurization" means the process of heating 
every particle of Crustacea meat in a hermeti- 
cally-sealed 401 by 301 one pound container to 
a temperature of at least 185° F (85° C) and 
holding it continuously at or above this temper- 
ature for at least one minute in properly oper- 
ated equipment approved by the Division. The 
term includes any other process which has been 
found equally effective by the Division. 

(12) "Pasteurization date" means a code conspicu- 
ously placed on the container to indicate the 
date that the product was pasteurized. 

(13) "Processing" means any of the following 
operations when carried out in conjunction with 
the cooking of Crustacea or Crustacea meat: 
receiving, refrigerating, air-cooling, picking, 
packing, repacking, thermal processing, or 
pasteurizing. 

(14) "Repacker" means a facility which repacks 
cooked Crustacea meat proc e ss e d by a North 
Carolina certifi e d Crustac e a facility' into other 
containers. 

(15) "Responsible person" means the individual 
present in a cooked Crustacea facility who is 
the apparent supervisor of the cooked Crustacea 
facility at the time of the inspection. If no 
mdividual is the apparent supervisor, then any 
employee is the responsible person. 

(16) "Sanitize" means the approved bactericidal 
treatment by a process which meets the temper- 
ature and chemical concentration levels in 15A 
NCAC 18A .2619. 

(17) "Thermal processing" means the heating of 
previously cooked Crustacea or Crustacea meat 
to a desired temperature for a specified time in 
properly operated equipment approved by the 
Division. 

Authority G.S. 106-129: 106-130; 130A-230. 

.0136 APPLICABELFTY OF RULES 

The Rules in this Section shall apply to the operation 
of all facilities and persons permitted in Rule .0135 of this 
Section and all other businesses and persons that buy, sell, 
transport or ship cooked Crustacea or Crustacea m e at: meat 
which has not been transformed into another product. 
Foreign Crustacea meat processed in North Carolina shall 



988 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



PROPOSED RULES 



comply with all applicable Federal requirements. 

Authority G.S. 130A-230. 

.0137 GENERAL REQUIREMENTS FOR 

OPERATION 

(a) During the operating season the processing portion 
of the facility shall be used for no purpose other than the 
processing of cooked Crustacea or Crustacea meat. 

(b) Retail sales of cooked crustacea or Crustacea meat 
shall not be made from any processing portion of the 
facility. 

(c) Accurate records of all purchases and sales shall bo 
maintainod for tho following cooked of crustacea ef and 
Crustacea meat produoto: shall be maintained for one year. 
The records shall be ayailable for inspection by the Divi- 
sion. 

f4^ Fr e sh — 60 days. 

(3) Froz e n — 1 y e ar. 

(3^ Paatourizod — 1 y e ar. 

Authority G.S. 130A-230. 

.0159 SEPARATION OF OPERATIONS 

(a) Facility design shall provide for continuous flow of 
raw materials and product to prevent contamination by 
exposure to areas involved in earlier processing steps, 
refuse or other areas subject to contamination. 

(b) The following processes shall be carried out in 
separate rooms or areas: 

(1) Raw Crustacea receiving or refrigeration. 

(2) Crustacea cooking. 

(3) Cooked crustacea air-cool. 

(4) Cooked crustacea refrigeration. 

(5) Picking. 

(6) Packing. 

(7) Picked crustacea meat refrigeration. 

(8) Past e urizing. Pasteurizing/thermal processing. 

(9) Machine picking. 

(10) Repacking. 

(11) (40) Other processes when carried out in 
conjunction with the cooking of crustacea or 
crustacea meat. 

Authority G.S. 130A-230. 

.0168 SINGLE-SERVICE CONTAINERS 

(a) Single-service containers used for packing or 
repacking cooked crustacea and crustacea meat shall be 
made from approved materials. 

(b) Containers shall not be reused for packing or 
repacking cooked crustacea and crustacea meat. 

(c) No person shall use containers bearing a permit 
number other than the number assigned to the facility. 

(d) Each container or lid shall be legibly impressed, 
embossed or Uthographed with the name and address of the 
original packer, repacker or distributor. The original 



packer's or repacker's permit number preceded by the state 
abbreviation shall be legibly impressed, embossed or 
lithographed on each container. 

(e) Each container or lid shall be permanently and 
legibly identified with a code date. 

(f) All containers or lids shall be stored and handled 
in accordance with these Rules, sanitized by a procedure as 
stated in Rule .0157 of this Section and drained prior to 
filling. 

(g) Eff e ctiv e April 1, 1993, all All containers shall be 
sealed so that tampering can be detected. The words 
"Sealed For Your Protection" or equivalent shall be 
prominently displayed on the container or lid. 

Authority G.S. 130A-230. 

.0169 FREEZING 

(a) If Crustacea or crustacea meat is to be frozen, it 
shall b e froz e n within ^ 8 hours of packing and the code 
date shall be followed by the letter "F." 

(b) Frozen crustaooa moat shall not bo thawed prior to 
saidr Thawed crustacea or crustacea meat shall be labeled 
as "Previously Frozen" or equivalent. 

(c) Frozen crustacea or crustacea meat shall be stored 
at a temperature of 0° F (-18° C) or less. 

(d) The frozen storage rooms shall be equipped with 
an accurate, operating thermometer. 

Authority G.S. 130A-230. 

.0173 REPACKING 

(a) Crustacea meat for repacking shall bo which is 
processed in a North Carolina cru s taooa facility shall 
p e rmitt e d in oompliano e comply with Rules .0134 through 
.0182 of this Section. Crustacea meat for repacking which 
is processed outside of North Carolina shall comply with 
Rule .0182 of this Section. Monthly bateriological reports 
shall be provided to the Division by the repacker of all 
foreign crustacea meat for repacking. 

(b) The repacker shall havo a written agroomont with 
each facility which provides crustacoa moat for repacking. 
Th e Division shall bo provid e d a copy of this written 
agre e m e nt provide the Division a current written list of all 
sources of crustacea meat used for repacking . 

(e) — Crustacea moat for repacking shall bo ropackod 
within 48 hours of th e original packing. 

(d) Crustac e a m e at for r e packing shall bo in oompli 
anoo with tho following: 

(4) Packed in original container or in a single 

o e rvio e — container — lab e l e d — "For — Repacking 
Only"; 

(3) Idontifiod with original packer's cortiflcation 

number and eodo date; and 

(3) Iced and cool e d to 40° F (1.1° C) or b e low 

svithin two hour s of r e c e ipt ui packing room, 
(o) Shipping of crustacoa moat for ropaoking shall be 
in compliance with tho following: 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



989 



PROPOSED RULES 



{^ Vchielcs usod to transport orustocoa moat for 

ropacking shall bo maohanioally r e frig e rat e d, 

onoloDod, tightly oonstruotod and cxiuipp e d with 

on operating thermometer. 
(33 CruHtaooa meat for repacking shall bo stored 

and transport e d botwoon 33° F (0.5° C) and 

40° F (1.'1° C). 
f53 The — interior shipping compartment of the 

vehicle shall be cleaned prior to shipment of 

Crustac e a moat for repacking. 
{A) Th e shipment shall consist only of proc e ss e d 

and packaged Crustacea moat. 
(5^ Vehicles s hall be approved as part of tho 

facility certification. 

(c) {^ Repacking of Crustacea meat: 

(1) Crustacea meat shall not exceed 45° F (7.1° 
C) during the repacking process. 

(2) Repacking shall be conducted separately by 
time or space from the routine Crustacea meat 
picking and packing process. 

(3) The food contact surfaces and utensils utilized 
in the repacking process shall be cleaned and 
sanitized prior to repacking and thereafter on 
30 minute intervals during repacking. 

(4) Repacked Crustacea meat shall be maintained at 
or belov/ botv .ee n 33° F (0.5° C) and 40° F 
(4.4° C). 

(5) Blending or combining of any of the following 
shall be prohibited: 

(A) Fresh Crustacea meat. 

(B) Frozen Crustacea meat. 

(C) Pasteurized Crustacea meat. 

(D) Crustacea meat packed in another facil- 
ity. 

(6) Crustacea meat shall not be repacked more 
than one time. 

(7) All empty containers shall be rendered unus- 
able. 

(d) (g) Labeling of repacked Crustacea meat: 

(1) Each container shall be legibly embossed, 
impressed or lithographed with the repacker's 
or the distributor's name and address. 

(2) Each container shall be legibly embossed, 
impressed or lithographed with the repacker's 
certification number followed by the letters 
"RP." 

(3) Each container shall be permanently and legi- 
bly identified with a code indicating the repack 
date. 

(4) Each container shall be sealed so that tamper- 
ing can be detected. 

(5) Each container of thawed Crustacea meat which 
has been repacked shall be labeled as "Previ- 
ously Frozen" or equivalent. 

(6) Each container of pasteurized Crustacea meat 
which has been repacked shall be labeled as 
"Previously Pasteurized" or equivalent. 



(7) Each container of foreign Crustacea meat which 
has been repacked shall be labeled in accor- 
dance with Federal labeling requirements. 

(e) (b) Repacked Crustacea meat shall meet bacterio- 
logical and contamination standards in Rule .0182 of this 
Section. 

(f) (i^ Records shall be kept for all purchases of 
Crustacea meat for repacking and sales of repacked meat for 
one year. The records shall be available for inspection by 
the Division. 

Authority G.S. 130A-230. 

.0174 PASTEURIZATION PROCESS 

CONTROLS - THERMOMETERS 

(a) All pasteurizing equipment shall have a 
time-temperature recording thermometer with a temperature 
controller (combined or separately) and an indicating 
thermometer. The thermometers shall be located to give a 
true representation of the operating temperature of the 
water bath. The recording thermometer chart shall be at 
least a 12-hour chart and at least 10 inches in diameter. 

(l5) The recording thermometer shall be installed so 
that it will be protected from vibration and from striking by 
loading operations or facility traffic. The thermometer 
mechanism shall be protected from moisture under prevail- 
ing conditions. The thermometer case shall not be opened 
during the pasteurizing cycle, except for temperature check 
or for emergency or repair. A record shall be made when 
the thermometer case has been opened. 

(c) The recording thermometer shall have a range of 
at least 120-220° F (48.9-104.4° C). It shall be accurate 
within plus or minus 1° F between 160° F (71° C) and 
200° F (93° C). The chart shall be scaled at a maximum 
of 2° F intervals in the range of 160° F (71° C) and 200° 
F (93° C) 

(d) The indicating thermometer shall be a thermometer 
with an accuracy and readability of plus or minus 1° F 
between 160° F (71° C) and 200° F (93° C). The 
thermometer shall be protected against damage. 

(e) The recording thermometer shall be equipped with 
a spring-operated or electrically operated clock. The 
recorded elapsed time as indicated by the chart rotation 
shall not exceed the true elapsed time as shown by an 
accurate watch. The rotating chart support shall be pro- 
vided with pins upon which the chart shall be affixed by 
puncturing the chart. 

(f) The pasteurization unit shall not be operated 
without a recording thermometer chart in place, the pen in 
contact with the chart and an inked record being made of 
the operating time-temperature cycle. Any indication of 
falsification of a thermometer chart shall constitute a 
violation. A f)ermanent file of the used thermometer charts 
shall be maintained by the pasteurizer and kept available for 
inspection by the Division for a period of one year. The 
following information shall be recorded within the confines 
of the pen markings after the pasteurization cycle has been 



990 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



PROPOSED RULES 



completed: 

(1) Date of pasteurization. 

(2) Quantity of each batch pasteurized (pounds of 
Crustacea meat or number and size of contain- 
ers). 

(3) Processor's code of each pack. 

(4) If the pasteurizer processes Crustacea meat for 
someone else, then the packer's name, address 
and permit number must be recorded. A copy 
of the recording chart shall be provided to the 
owner of the Crustacea meat. 

(5) Notation of mechanical or power failure or 
opening of the recording thermometer case for 
adjustment or repair during the pasteurizing 
cycle. 

(6) After the optimum temperature in the water 
bath has been reached and during the holding 
time, the reading of the indicating thermometer 
and the time of reading shall be recorded on 
the chart. 

(7) Signature of the pasteurizer operator. 

(g) A constant flow steam control valve is required, if 
steam is used as a source of heat. 

(h) The water bath shall be provided with effective 
agitation to maintain a uniform temperature. 

(i) Other technologies that provide the data, informa- 
tion and records as required in this Rule mav be used if 
approved by the Division. 

Authority G.S. 130A-230. 

.0175 PREPARATION OF CRUSTACEA MEAT 

FOR PASTEURIZATION 

The preparation of Crustacea meat for pasteurization 
shall be in compliance with the following: 

(1) Crustacea meat shall be prepared in compliance 
with Rules .0134 through T#i«3 .0183 of this 
Section. 

(2) The containers of Crustacea meat shall be 
sealed as quickly as jxissible after the Crustacea 
meat is picked. 

(3) The sealed container of Crustacea meat shall be 
placed immediately in ice and refrigerated until 
pasteurized. 

Authority G.S. 130A-230. 

.0176 PASTEURIZATION OF CRUSTACEA 

MEAT 

The pasteurization of Crustacea meat shall be in 
compliance with the following: 

(1) Crustacea moat for pastourization — shall bo 
paotourizod within 48 hours of tho timo it is 
pick e d. The minimum pasteurization specifica- 
tions shall be the raising of the internal temper- 
ature of the container of Crustacea meat to 
185° F (85° C) and holding at that temperature 



for at least one minute at the geometric center 
of a container. Each set of pasteurizing equip- 
ment shall be standardized so that the minimum 
pasteurization procedure in this Subparagraph 
can be obtained. The pasteurization procedure 
shall be performed in accordance with the 
standardization report. This process shall also 
be posted adjacent to the pasteurization vat. 
The pasteurizer shall keep on file the standard- 
ization report and shall provide the Division a 
copy of such report. 

(2) Alteration of the equipment or loading of 
containers shall require the procedure be 
restandardized. 

(3) The containers of Crustacea meat shall be 
cooled to 50° F (10° C) or below within three 
hours. 

(4) Refrigerated storage shall be provided for the 
cooled Crustacea meat and shall maintain a 
storage temperature at or below 36 ° F (2.2°C). 
(2.2° C) but above 32° F (0° C). 

Authority G.S. 130A-230. 

.0182 BACTERIOLOGICAL AND 

CONTAMINATION STANDARDS 

(a) Cooked Crustacea or Crustacea meat shall not 
exceed Escherichia coU Most Probable Number (MPN) of 
36 per 100 grams of sample or exceed a standard plate 
count of 100,000 per gram. 

(b) Pasteurized Crustacea meat shall contain no 
Escherichia coli or fecal coliform. Samples of pasteurized 
Crustacea meat, taken within 24 hours of pasteurizing, shall 
not have a standard plate count of more than 3,000 per 
gram. 

(c) Thermally processed Crustacea or Crustacea meat 
shall not exceed Escherichia coli MPN of 36 per 100 grams 
of sample or exceed a standard plate count of 100.000 per 
gram. 

(d) (e) Cooked Crustacea or Crustacea meat shall not 
contain pathogenic organisms in sufficient numbers to be 
hazardous to the public health. 

(e) (d) Cooked Crustacea or Crustacea meat shall not 
be contaminated by any other substance which renders it 
unsafe for human consumption. 

(f) (e) Cooked Crustacea or Crustacea meat found not 
complying with the standards as stated in Paragraph (a), 
(b), (©) (c), Gf (d) or (e} of this Rule may be deemed 
adulterated by the Division. 

Authority G.S. 130A-230. 

.0183 ALTERNATIVE LABELING 

A durable label, approved by the Division, permanently 
affixed to the container may be used to meet any labeling 
requirement in this Section. 



11:12 



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991 



PROPOSED RULES 



Authority G.S. 130A-230. 



.0184 



THERMAL PROCESSING 
CONTROLS - THERMOMETERS 

(a) All thermal processing equipment shall have a 
time-temperature recording thermometer with a temperature 
controller (combined or separately) and an indicating 
thennometer. The thermometers shall be located to give a 
true representation of the operating temperature of the 
process. The recording thermometer chart shall be at least 
a 12-hour chart and at least 10 inches in diameter. 

£bj The recording thermometer shall be installed so 
that U will be protected from vibration and from striking by 
loading operations or facility traffic. The thermometer 
mechanism shall be protected from moisture under prevail- 
ing conditions. The thermometer case shall not be opened 
during the thermal processing cycle, except for temperature 
check or for emergency or repair. A record shall be made 
when the thermometer case has been opened. 

(c) TTie recording thermometer shall have a range of 
at least 120-220° F (48.9-104.4° C). It shall be accurate 
within plus or minus 1° F between 160° F (71° C) and 
2(X)° F (93° C). The chart shall be scaled at a maximum 
of r F intervals in the range of 160° F (IT Cji and 200° 
F (93° C). 

(d) TTie indicating thermometer shall be a thermometer 
with an accuracy and readability of plus or minus 1 ° F 
between 160° F tljl C) and 200° F (931 C)^ The 
thermometer shall be protected against damage. 

(e) The recording thermometer shall be e^quipped with 
a spring-operated or electrically operated clock. Tlie 
recorded elapsed time as indicated by the chart rotation 
shall not exceed the true elapsed time as shown by an 
accurate watch. Tlie rotating chart support shall be pro- 
vided with pins upon which the chart shall be affixed by 
puncturing the chart. 

(f) The thermal processing unit shall not be operated 
without a recording thermometer chart in place, the pen in 
contact with the chart and an inked record being made of 
the operating time-temperature cycle. Any indication of 
falsification of a thermometer chart shall constitute a 
violation. A permanent file of the used thermometer charts 
shall be maintained by the thermal processor and kept 
available for inspection by the Division for a period of one 
year. The following information shall be recorded within 
the confines of the pen markings after the thermal process- 
ing cycle has been completed: 

( 1 ) Date of thermal processing. 

Quantity of each batch thermally processed 
(pounds of Crustacea meat or number and size 
of containers). 

Thermal processor's code of each pack. 
If the thermal processor processes Crustacea 
meat for someone else, then the packer's name, 
address and permit number must be recorded. 
A copy of the recording chart shall be provided 
to the owner of the Crustacea meat. 



01 



(4) 



(5) Notation of mechanical or power failure or 
opening of the recording thermometer case for 
adjustment or repair during the thermal pro- 
cessing cycle. 

(6) After the optimum temperature in the thermal 
process has been reached and during the hold- 
ing time, the reading of the indicating ther- 
mometer and the time of reading shall be 
recorded on the chart. 

(7) Signature of the thermal process operator. 

(g) A constant flow steam control valve is required, if 
steam is used as a source of heat. 

fh) The thermal processing unit shall be provided with 
effective and uniform temperature. 

(i) Other technologies that provide the data, informa- 
tion and records as required in this Rule may be used if 
approved by the Division. 

Authority G.S. 130A-230. 

.0185 THERMAL PROCESSING OF 

CRUSTACEA AND CRUSTACEA MEAT 

The thermal processing of Crustacea or Crustacea meat 
shall be in compliance with the following: 

( 1) The minimum thermal processing specifications 
shall be the raising of the internal temperature 
of the container of Crustacea or Crustacea meat 
to a desired temperature and time at the geo- 
metric center of a container. Each set of 
thermal processing equipment shall be stan- 
dardized so that the mimmum procedure can be 
obtained. The thermal process procedure shall 
^ performed in accordance with the standard- 
ization report. This process shall also be 
posted adjacent to the thermal processing unit. 
The thermal processor shall keep on file the 
standardization report and shall provide the 
Division a copy of such report. 

(2) Alteration of the equipment or loading of 
containers shall require the procedure be 
restandardized. 

(3) The containers of Crustacea or Crustacea meat 
shall be cooled to 501 F UOl Q or below 
within three hours. 

(4) Refrigerated storage shall be provided for the 
cooled Crustacea or Crustacea meat and shall 
maintain a storage temperature at or below 36° 
F (2.2° C). 

Authority G.S. 130A-230. 



.0186 LABELING OF THERMALLY 

PROCESSED CRUSTACEA OR 
CRUSTACEA MEAT 

Labeling of thermally processed Crustacea or Crustacea 
meat shall be in compliance with the following: 

(1) The label used shall clearly identify the con- 



992 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



PROPOSED RULES 



tents of the container as thermally processed 
Crustacea or Crustacea meat. 

(2) Each container shall be permanently and legi- 
bly identified with a code indicating the batch 
and day of processing. 

(3) The words "Perishable-Keep Under Refrigera- 
tion" or equivalent shall be prominently dis- 
played on the container. 

(4) The original packer's or repacker's permit 
number preceded by the state abbreviation shall 
be legibly impressed, embossed or lithographed 
on each container. Each container shall be 
legibly impressed, embossed or lithographed 
with the name and address of the original 
packer, repacker or distributor. 

Authority G.S. 130A-230. 

.0187 INTERFACILITY THERMAL 

PROCESSING PROCEDURES 

No person shall initiate interfacility thermal processing 
of Crustacea or Crustacea meat without prior written 
approval by the Division. Interfacility thermal processing 
of Crustacea or Crustacea meat shall be in conjunction with 
the following: 

(1) Crustacea or Crustacea meat shall be packed, 
labeled and refrigerated in compliance with 
Rules .0134 through .0187 of this Section. 
Records shall be maintained to identify each 
batch of Crustacea or Crustacea meat thermally 
processed. 

(2) Crustacea or Crustacea meat shall be shipp ed in 
an enclosed, easily cleanable v ehicle at a 
temperature between 33° F (0.5° C) and 40° F 
(4.4° C). 

£3} Crustacea or Crustacea meat shall be thermally 
processed in compliance with Rules .0184 
through .0187 of this Section. The thermal 
processor shall provide a copy of each thermal 
processing chart to the original packer. 

Authority G.S. 130A-230. 

SECTION .0300 - SANITATION OF 
SHELLFISH - GENERAL 

.0301 DEFINITIONS 

The following definitions shall apply throughout this 
Subchapter: 

(1) "Adulterated" means the following: 

(a) Any shellfish that have been harvested 
from prohibited areas; 

(b) Any shellfish that have been shucked, 
packed, or otherwise processed in a 
plant which has not been permitted by 
the Division in accordance with these 
Rules; 



(c) Any shellfish which exceed the bacterio- 
logical standards in Rule .0430 of this 
Subchapter; 

(d) Any shellfish which are putrid or unfit 
for human consumption; 

(e) Any shellfish which have been exposed 
to any unsanitary conditions; or 

(f) Any shellfish which contain any added 
substance, unless the substance is ap- 
proved by the Division or the United 
States Food and Drug Administration. 

(2) "Approved area" means an area determined 
suitable for the harvest of shellfish for direct 
market purposes. 

(3) "Bulk shipment" means a shipment of loose 
shellstock. 

(4) "Buy boat or buy truck" means any approved 
boat or truck that is used by a person permitted 
under these Rules to transport shellstock from 
one or more harvesters to a facility permitted 
under these Rules. 

(5) "Certification number" means the number 
assigned by the state shellfish control agency to 
each certified shellfish dealer. It consists of a 
one to five digit number preceded by the two 
letter state abbreviation and followed by the 
two letter symbol designating the type of 
operation certified. 

(6) f5) "Depuration" means mechanical purification 
or the removal of adulteration from live 
shellstock by any artificially controlled means. 

(7) (6) "Depuration facility" means the physical 
structure wherein depuration is accomplished, 
including all the appurtenances necessary to the 
effective operation thereof. 

(8) f?) "Division" means the Division of Environ- 
mental Health or its authorized agent. 

(9) (^ "Heat shock process" means the practice of 
heating shellstock to facilitate removal of the 
shellfish meat from the shell. 

(10) (9) "Misbranded" means the following: 

(a) Any shellfish which are not labeled with 
a valid identification number awarded by 
regulatory authority of the state or terri- 
tory of origin of the shellfish; or 

(b) Any shellfish which are not labeled as 
required by these Rules. 

(11) f40) "Operating season" means the season of 
the year during which a shellfish product is 
processed. 

(12) f44) "Person" means an individual, corpora- 
tion, company, association, partnership, unit of 
government or other legal entity. 

(13) (13) "Prohibited area" means an area unsuit- 
able for the harvesting of shellfish for direct 
market purposes. 

(14) (45) "Relaying or transplanting" means the act 



11:12 



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September 16, 1996 



993 



PROPOSED RULES 



(15) 



(16) 



till 



(18) 



(19) 



(20 



(21) 
(221 

(23) 

£241 
(25) 
(26^ 



of removing shellfish fiom one growing area or 
shellfish grounds to another area or ground for 
any purpose. 

f44) "Repacking plant" means a shipper, other 
than the original shucker-packer, who repacks 
shucked shellfish into containers for delivery to 
the consumer. 

f+4) "Reshipper" means a shipper who ships 
shucked shellfish in original containers, or 
shellstock, from permitted shellstock dealers to 
other dealers or to consumers. 
{W) "Sanitary survey" means the evaluation of 
factors having a bearing on the sanitary quality 
of a shellfish growing area including sources of 
pollution, the effects of wind, tides and cur- 
rents in the distribution and dilution of pollut- 
ing materials, and the bacteriological quality of 
water. 

f4^ "Sanitize" means the approved bactericidal 
treatment by a process which provides suffi- 
cient accumulative heat or concentration of 
chemicals for sufficient time to reduce the 
bacterial count, including pathogens, to a safe 
level on utensils and equipment. 
f4-8) "SELL BY date" means a date conspicu- 
ously placed on a container or tag by which a 
consumer is informed of the latest date the 
product will remain suitable for sale 
(4-9^ "Shellfish" means oysters, mussels, scal- 
lops and all varieties of clams. However, the 
term shall not include scallops when the final 
product is the shucked adductor muscle only. 
f30) "Shellstock" means any shellfish which 
remain in their shells. 

(344 "Shellstock conveyance" means all trucks, 
trailers, or other conveyances used to transport 
shellstock. 

(22) "Shellstock dealer" means a person who 
buys, sells, stores, or transports or causes to be 
transported shellstock which was not obtained 
from a person permitted under these Rules. 
(33^ "Shellstock plant" means any establish- 
ment where shellstock are washed, packed, or 
otherwise prepared for sale. 

(34) "Shucking and packing plant" means any 
establishment or place where shellfish are 
shucked and packed for sale. 

(35) "Wet storage" means the temporary place- 
ment of shellstock from approved sources, m 
approv e d natural s e a wat e r, in containers or 
floats in natural bodies of water or in tanks 
containing natural sea water. 



Authority G.S. 130A-230. 

.0302 PERMITS 

(a) No person shall operate any of the following 



facilities without a permit issued by the Division: 

(1) Depuration facilities; 

(2) Shellstock plants; 

(3) Shucking and packing plants; 
(4) Wot storage aroas; 

(4) (5) Repacking plants. 

(b) No person shall operate as a shellstock dealer 
without a permit issued by the Division. 

(c) A permit may be issued to a reshipper when 
required for out of state shipment. 

(d) Approval for wet storage of shellstock shall be 
granted only to persons permitted in this Rule. 

(e) (d) Application for a permit shall be submitted in 
writing to the Division at the Shellfish Sanitation Office, 
Fisheries Building, Arendell Street, Morehead City, North 
Carolina, 28557. Apphcation forms are available from the 
Division. 

(f) (e) No permit shall be issued by the Division until 
an inspection shows that the facilities and equipment 
comply with all applicable rules of this Subchapter. 

(g) (f) All permits shall be posted In a conspicuous 
place in the facilities. All permits shall expire on April 30 
of each year. 

(h) (g) Plans and specifications for proposed new 
construction or remodeling shall be submitted to the 
Division for review and approval. 

(il (fe) A permit may be revoked or suspended pursu- 
ant to G.S. 130A-23. 

Authority G.S. 130A-230. 

SECTION .0400 - SANITATION OF 

SHELLFISH - GENERAL OPERATION 

STANDARDS 

.0401 APPLICABILITY OF RULES 

The Rules in this Section shall apply to the operation 
of all facilities and persons permitted in Rule .0302 and all 
other businesses and persons that buy, sell, transport, or 
ship shellfish. These Rules do not apply to persons 
possessing shellfish for personal use. 

Authority G.S. I30A-230. 

.0421 DAILY RECORD 

All permitted persons who conduct any whol e salo 
business of buying, selling, or shipping shellfish shall keep 
an accurate, daily record which shall show the names and 
addresses of all persons from whom shellfish are received, 
the location of the source of shellfish, and the names and 
addresses of all persons to whom shellfish are sold or 
shipped. These records shall be recorded in a permanently 
bound ledger and maintained in a manner approved by the 
Division and shall be kept on file for one year. All records 
shall be open to inspection by the Division at any time 
during business hours. 



994 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



PROPOSED RULES 



Authority G.S. 130A-230. 

.0424 SHELLFISH RECEIVING 

No person shall receive or accept any shellfish unless 
the container or package bears the tag or label required by 
these Rules. Thio rul e dooo not apply to tho roooipt of 
ohollotook from a harvoDtor to a p e rmittod d eateiv 

Authority G.S. 130A-230. 

.0425 TAGGING 

(a) In order that information may be available to the 
Division with reference to the origin of shellstock, contain- 
ers holding shellstock shall be identified with a uniform tag 
or label. The tag shall be durable, waterproof and measure 
at least 2-5/8 by 5-1/4 inches (6.7 by 13.3 centimeters). 
The tag shall contain legible information arranged in 
specific order as follows: 

(1) the dealer's name, address and certification 
number assigned by the appropriate shellfish 
control agency; 

(2) the original shipper's certification number; 
number, including th e oountr>' or otat e abbr e vi 
ation; 

(3) the harvest date; 

(4) the harvest location; location, including the 
country or state abbreviation; 

(5) when the shellstock has been in wet storage. 
the statement "THIS PRODUCT WAS IN 
WET STORAGE AT (FACIUTY CERTin- 
CATION NUMBER) FROM (DATE) TO 
(DATE)"; 

(6) (5) the type and quantity of shellfish; and 

(7) (6) the following statement shall appear in bold 
capitalized type "THIS TAG IS REQUIRED 
TO BE ATTACHED UNTIL CONTAINER IS 
EMPTY AND THEREAFTER KEPT ON 
HLEFOR 90 DAYS." 

(b) The uniform tag or label shall remain attached to 
the shellstock container until the container is empty and 
thereafter shall be kept on file for 90 days. 

(c) All shellstock from a depuration facility must be 
identified as having been cleansed by a depuration facility 
identified by a name and permit number on the tag. 



detected. Each individual container shall have permanently 
recorded on the container, so as to be conspicuous, the 
shucker-packer's, repacker's, or distributor's name and 
address, and the shucker-packer's or repacker's certification 
number. f)ormit number procodod by tho state abbreviation. 

(c) Any container of shucked shellfish which has a 
capacity of mor e than 64 fluid ounces or more shall be 
dated as of the date shucked on both the lid and sidewall or 
bottom. Any container of shucked shellfish which has a 
capacity of less than 64 fluid ounces or l e oo shall indicate 
a SELL BY date. 

(d) No person shall use containers bearing a permit 
certification number other than the number assigned to him. 

Authority G.S. 130A-230. 

.0615 SHELLFISH COOLING 

Shucked shellfish shall be cooled to an internal temper- 
ature of 45°F (7°C) or less within two hours after delivery 
to the packing room. Storage temperatures shall be 32° 
4 0° F (0° — 4^€> 401 F (41 C) or below . No ice or other 
foreign substance shaU be allowed to come into contact with 
the shellfish after processing has been completed. 

Authority G.S. 130A-230. 

.0616 SHELLFISH FREEZE^JG 

(a) If shellfish are to be frozen, they shall be frozen 
within three days of shucking and packing and the shucked 
date shall be preceded by the letter (F). 

(b) Frozen sh e llfish shall not b e thaw e d for r e sal e or 
bo ropaokod. 

^ (e) A temperature of 0° F (-18° C) or less shall be 
maintained in the frozen storage rooms. 

Authority G.S. 130A-230. 

.0617 SHIPPING 

(a) Shucked shellfish shall be stored and shipped at 
tcmporaturo3 bctv ^ -ocn 32° — W°F (0° 4 °C). 40° F (4° C). 

(b) Shipments shall be tagged or labeled to show the 
name and address of the consignee, the name and address 
of the shipper, the name of the state or territory of origin, 
and the permit number of the shipper. 



Authority G.S. 130A-230. 



Authoritx G.S. 130A-230. 



SECTION .0600 - OPERATION OF SHELLHSH 

SHUCKING AND PACKING PLANTS AND 

REPACKING PLANTS 

.0614 CONTAEVJERS 

(a) Containers used for transporting shucked shellfish 
shall be approved by the Division. These containers shall 
not be reused for packing shellfish. 

(b) Shucked shellfish shall be packed and shipped in 
approved containers, sealed so that tampering can be 



.0618 HEAT SHOCK METHOD OF 

PREPARATION OF SHELLnSH 

(a) Faculties. If a shucking and packing plant uses the 
heat shock process, it shall be done in an separate room 
adjacent to the shellstock storage room and the shucking 
room, approved by the Division for such purpose. 

fb) Tank construction. Tlie heat shock tank shall be 
constructed of smooth, non-corrosive metal, designed to 
drain quickly and completely and to be easily and thor- 
oughly cleaned. 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



995 



PROPOSED RULES 



(c) Booster heaters. All heat shock tanks shall be 
equipped v>.ith suitable booster heaters that are thermostati- 
call\' controlled. 

(d) Shellstock washing. All shellstock subjected to the 
heat shock process shall be thoroughly washed with flowing 
potable water immediately prior to the heat shock operation. 

(e) Water temperature. EXiring the heat shock process 
the water shall be maintained at not less than 145°F (63 °C) 
or more than 150"F (65°C). An accurate thermometer 
shall be available and used to determine the temperature 
during the heat shock process. All water shall be com- 
pletely drained from heat shock tanks and the tanks cleaned 
at least once in each three hour operational period or more 
often if necessan.'. 

(f) Time requirements. Shellstock subjected to the 
heat shock process shall not be immersed in the heat shock 
v.ater longer than three and one half minutes. An accurate 
timing device shall be available and used to determine the 
immersion time. 

(g) Alternatives to heat shock method. Nothing in 
these Rules shall be construed to prohibit any other process 
which has been found equally effective and has been 
approved by the Division. 

fh) Water requirements. At least eight gallons of heat 
shock water shall be maintained in the tank for each one 
half bushel of shellstock being treated. All water used in 
the heat shock process shall be from a source approved by 
the Division under Rule .0913 of this Subchapter. 

(i) Cooling. ImmediateK' after the heat shock process, 
all treated shellstock shall be subjected to a cool-down uith 
potable tap water. All heat shocked shellstock shall be 
handled in a manner to prevent adulteration of the product. 
Shellfish which have been subjected to the heat shock 
process shall be cooled to an internal temperature of 45°F 
(7°C) or below within two hours after this process and shall 
be placed in storage at 32° 4 0°F (0° — 4^-G>r 40° F (4° 
C) or below. 

(j) Cleaning. At the close of each day's operation, the 
heat shock tank shall be completely emptied of all water, 
mud. detritus, and thoroughly cleaned and then rinsed with 
flowing potable water. Water, mud, detritus, and other 
by-products shall be disposed of in a manner approved by 
the Division. 

{\) Sanitizing. All heat shock tanks shall be sanitized 
immediately before starting each day's operation. 

(1) Records. Records of heat shock processes shall be 
kept as required by the Division. 

Authority G.S. 130A-230. 

,0620 SHELLHSH THAWING AND 

REPACKING 

(a) Frozen shellfish shall be thawed under tempera- 
tures not to exceed 45' F (7^ C)^ 

£bj Shellfish held for thawing shall be separated from 
other shellfish. 

(£1 Thawed shellfish shall not exceed 45° F (7' C) 



during the repacking process. 

(d) Containers of repacked, thawed shellfish shall be 
labeled as required in Rule .0619 of this Section and shall 
also be labeled as "PREVIOUSLY FROZEN", or equiva- 
lent. 

(e) Thawed shellfish, which remain in original 
containers, shall be labeled as required in Rule .0614 of 
this Section and shall also be labeled as "PREVIOUSLY 
FROZE.N", or equivalent. 

Authority G.S. 130A-230. 

.0621 RECALL PROCEDLUE 

Each owner of a shellfish facility shall keep on file a 
written shellfish recall procedure. A cop\' of this procedure 
shall be provided to the Division. 

Authority G.S. 130.4-230. 

SECTION .0900 - CLASSIFICATION OF 
SHELLFISH GRO\MNG \N ATERS 

.0901 DEFINmONS 

The following defmitions shall apply throughout this 
Section. 

(1) "Approved area" means an area determined 
suitable for the harvesting of shellfish for direct 
market purposes. 

(2) "Closed - svstem marina" means a marina 
constructed in canals, small basins, small 
tributaries or an\' other area with restricted 
tidal fiow. 

(3) "Commercial marina" means marinas that offer 
one or more of the following services: fuel, 
transient dockage, haul-out facilities, or repair 
services. 

(4) "Conditionalh approved area" means an area 
subject to predictable Lntermittent pollution that 
may be used for harvesting shellfish for direct 
market purposes when management plan crite- 
ria are met. 

(5) "Depuration" means mechanical purification or 
the removal of adulteration from Uve shellstock 
by an\' artificially controlled method. 

(6) "Division" means the Division of Environmen- 
tal Health or its authorized agent. 

(7) "Fecal coliform" means bacteria of the coli- 
form group which will produce gas from 
lactose in a suitable multiple tube procedure 
liquid medium (EC or A-1) within 24 plus or 
minus rwo hours at 44.5 °C plus or minus 
0.2 °C in a water bath. 

(8) "Growing waters" means waters which support 
or could support shellfish life. 

(9) "Marina" means any water area with a struc- 
ture (dock, basin, floating dock, etc.) which is 
utilized for docking or otherwise mooring 



996 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



PROPOSED RULES 



vessels and constructed to provide temporary 
or permanent docking space for more than tea 
10 boats. 

(10) "Marine biotoxins" means a poisonous sub- 
stance accumulated by shellfish feeding upon 
dinoflagellates containing toxins. 

(11) "Most probable number (MPN)" means a 
statistical estimate of the number of bacteria 
per unit volume and is determined from the 
number of positive results in a series of fer- 
mentation tubes. 

(12) "Open - system marina" means a marina con- 
structed in an area where tidal currents have 
not been impeded by natural or man-made 
barriers. 

(13) "Private marina" means any marina that is not 
a commercial marina as defined in these Rules. 

(14) "Prohibited area" means an area unsuitable for 
the harvesting of shellfish for direct market 
purposes. 

(15) "Pubhc health emergency" means any condition 
that may immediately cause shellfish waters to 
be unsafe for the harvest of shellfish for human 
consumption. 

(16) "Relaymg" means the act of removing shellfish 
from one growing area or shellfish grounds to 
another area or ground for any purpose. 

(17) "Restricted area" means an area from which 
shellfish may be harvested only by permit and 
subjected to an approved depuration process or 
relayed to an approved area. 

(18) "Sanitary survey" means the evaluation of 
factors that affect the sanitary quality of a 
shellfish growing area including sources of 
pollution, the effects of wind, tides and cur- 
rents in the distribution and dilution of pollut- 
ing materials, and the bacteriological quality of 
water. 

(19) "Shellfish" means oysters, mussels, scallops 
and all varieties of clams. However, the term 
shall not include scallops when the final prod- 
uct is the shucked adductor muscle only. 

(20) "Shoreline survey" means a visual inspection of 
the environmental factors that affect the sani- 
tary quality of a growing area and identifies 
sources of pollution when possible. 

Authority G.S. 130A-230. 

SECTION .1300 - SANITATION OF HOSPITALS: 

NURSING AND REST HOMES: SANITARIUMS: 

SANATORIUMS 

.1301 DEFEVrriONS 

The following definitions shall apply throughout this 
Section in the interpretation and enforcement of this 
Section: 



(1) "Institution" includes the following establish- 
ments providing room or board and for which 
a license or certificate of payment must be 
obtained from the Department of Human 
Resources, other than those operated exclu- 
sively by the State of North Carolina: 

(a) hospital, as defined in G.S. 131E-76 
including doctors' clinics with food 
preparation facilities; 

(b) nursing home, as defined in G.S. 
131E-101; 

(c) sanitarium, sanatorium, and any similar 
establishment, other than hospital and 
nursing home, for the recuperation and 
treatment of 13 or more persons suffer- 
ing from physical or mental disorders; 

(d) rest home, providing custodial care on a 
24-hour basis for 13 or more persons, 
including homes for the aged; 

(e) orphanage, or children's home providing 
care on a 24-hour basis for 13 or more 
childr e n; 

children. 

(f) educational institution, providing dormi 

tor>' or similar living quarters and meals 
in whol e or in part to studento, faculty, 
or oth e rs in att e ndanc e , including board 
ing schools and eollogos; 
However, the term shall not include a 
child day car e facility or a r e sid e ntial 
car e facility as d e fin e d in 15A NCAC 
1 8 A .1600. 

(2) "Department of Envirormient, Health, and 
Natural Resources" shall mean the Secretary, 
or his authorized representative. 

(3) "Local health director" shall mean local health 
director as defined in G.S. 130A-2(6) or his 
authorized representative. 

(4) "Sanitarian" shall mean a person authorized to 
represent the Department on the local or state 
level in making inspections pursuant to state 
laws and regulations. 

(5) "Person" shall mean an individual, firm, asso- 
ciation, organization, partnership, business 
trust, corporation, or company. 

(6) "Potentially hazardous food" means any food 
or ingredient, natural or synthetic, in a form 
capable of supporting the growth of infectious 
or toxigenic microorganisms, including Clos- 
tridium botulinum. This term includes raw or 
heat treated foods of animal origin, raw seed 
sprouts, and treated foods of plant origin. The 
term does not include foods which have a pH 
level of 4.6 or below or a water activity (Aw) 
value of 0.85 or less. 

(7) "Sanitize" means the approved bactericidal 
treatment by a process which meets the temper- 



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September 16, 1996 



997 



PROPOSED RULES 



ature and chemical concentration levels in 15A 
NCAC 18A .2619. 

Authority G.S. 130A-235. 

.1302 APPROVAL OF PLANS 

Plans and specifications for new construction or 
modifications may be submitted to the agency designated by 
state licensure regulations and to the local health department 
for review before beginning construction. Plans for food 
sop i 'io e facilities of oduoational institutions ohall be submit 
tod to tho Divinion of Environmental HiMilth. 

Authority G.S. 130A-235. 

.1319 BEDROOM ANfD LOBBY FURNISHINGS 

(a) All furniture, bed springs, mattresses, draperies, 
curtains, shades, Venetian blinds, or other furnishings shall 
be kept clean and in good repair. 

(b) Clean bed linen in good repair shall be provided for 
each individual and shall be changed when soiled. Clean 
linen shall be stored and handled in a sanitary manner. 
Soiled linen shall be stored and handled in such a manner 
as not to spread contamination, as by the use of suitable 
bags or closed hampers. Suitable rooms or spaces shall be 
provided for the separate storage of clean and soiled linens. 

fe9 — Tho provioionn r e garding lin e n do not apply to 
educational institutions in svhich linens aro provided by 
students. 

Authority G.S. 130A-235. 

TITLE 17 - DEPARTMENT OF REVENUE 



17 NCAC 7B .4501 - For clarification purposes. 

Comment Procedures: Written public comment should be 
addressed to Jack L. Harper, Assistant Secretary for Tax 
Administration, PO Box 871, Raleigh. NC 27602-0871. 
Comments must be received by October 16, 1996. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules 
do not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 7 - SALES AND USE TAX 

SUBCHAPTER 7B - STATE SALES AND 
USE TAX 

SECTION .0100 - GENERAL PROVISIONS 

.0118 CHANGE EN OWNERSHIP 

When a partnership dissolves and e ach one or both of 
the former partners bogins begin operating a business on an 
individual basis, one of the partners may retain the sales 
and us e tax r e gistration number of th e partn e rship and tho 
oth e r partn e r can b e assign e d a n e w registration numb e r 
without an additional registration fee. each person operating 
a business shall complete an application for registration and 
pay the registration fee. When a partnership or proprietor- 
ship is succeeded by a corporation, a n e w r e gistration f e e 
is required for the corporation, corporation shall complete 
an application for registration and remit the fee. 

Authority G.S. 105-164.4: 105-262. 



Notice is hereby given that the North Carolina Depart- 
ment of Revenue intends to amend rules cited as 17 
NCAC 7B .0118, .1602, .1702, .1802, .3103, .3106, 
.4202, 4501. 

Editor's Note: G.S. 150B-l(d)(4) exempts the Department 
of Revenue from Part 2 Article 2A of Chapter 150 with 
respect to the notice and hearing requirements. The 
Department will however publish the text of proposed rules 
in the North Carolina Register prior to the scheduled time 
of review by the Rules Review Commission. 

Proposed Effective Date: April 1, 1997 

Reason for Proposed Action: 

17 NCAC 7B .0118 - To conform to the ITAS (Integrated 
Tax Administration System) standards and computer require- 
ments of the Department of Revenue. 
17 NCAC 7B .1602, .1702, .1802 - To make technical 
changes. 

17 NCAC 7B .3103, .3106 - For clarification purposes. 
17 NCAC 7B .4202 - To add two new prefixes used on 
credit cards used by the United States Government. 



SECTION .1600 - SALES TO OR BY HOSPITALS: 

EDUCATIONAL: CHARITABLE OR RELIGIOUS 

INSTITUTIONS: ETC., AND REFUNDS THERETO 

.1602 REFUNDS TO NONPROFIT ENTITIES 

AND MEDICINES AND DRUGS 
PURCHASED BY HOSPITALS 

(a) The refiind provisions contained in this Rule do not 
apply to the tax on taxable sales by the nonprofit entities 
named in G.S. 105-164. 14(b) and no part thereof shall be 
refunded or claimed as a refund. Nonprofit entities 
registered for sales and use tax purposes may purchase the 
tangible personal property which they resell without paying 
tax thereon to their suppliers provided they have furnished 
such suppliers with properly executed Certificates of 
Resale, Form E-590. Certificates of resale may not be 
used by any nonprofit entity in making purchases of 
tangible personal property to be used or consumed by such 
purchaser. 

(b) All refund claims shall be substantiated by proper 
documentary proof and only the taxes actually paid by the 
claimant during the period for which the claim for refund 
is filed may be included in the claim. Any local sales or 



998 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



PROPOSED RULES 



use taxes included in the claim shall be separately stated in 
the claim for refund. In cases where more than one 
county's tax has been paid, a breakdown shall be attached 
to the claim showing the amount of each county's local tax 
separately. 

(c) As to taxes paid on the claimant's purchases for 
use, other than those made by contractors performing work 
for the claimant, invoices or copies of invoices showing the 
property purchased, the cost thereof, the date of purchase 
and the amount of state and local sales or use tax paid 
during the refund period will constitute proper documentary 
proof. 

(d) To substantiate a refund claim for sales or use 
taxes paid on purchases of building materials, supplies, 
fixtures and equipment by its contractor, the claimant shall 
secure from such contractor certified statements setting 
forth the cost of the property purchased from each vendor 
and the amount of state and local sales or use taxes paid 
thereon. In the event the contractor makes several pur- 
chases from the same vendor, such certified statement shall 
indicate the invoice numbers, the inclusive dates of the 
invoices, the total amount of the invoices and the sales and 
use taxes paid thereon. Such statement shall also include 
the cost of any tangible personal property withdrawn from 
the contractor's warehouse stock and the amount of state 
and local sales or use tax paid thereon by the contractor. 
Similar certified statements by his subcontractors shall be 
obtained by the general contractor and furnished to the 
claimant. Any local sales or use taxes included in the 
contractor's statements shall be shown separately from the 
state sales or use taxes. The contractor's statements shall 
not contain sales or use taxes paid on purchases of tangible 
personal property by such contractors for use in performing 
the contract which does not annex to, affix to or in some 
manner become a part of the building or structure being 
erected, altered or repaired which is owned or leased by a 
nonprofit entity for use by a nonprofit entity named in G.S. 
105-164. 14fb) for carrying on its nonprofit activities. 
Examples of property on which sales or use tax has been 
paid by the contractor and which shall not be included in 
the contractor's statement are scaffolding, forms for 
concrete, fuel for the operation of machinery and equip- 
ment, tools, equipment repair parts, equipment rentals and 
blueprints- 

(e) The refund provisions set forth in this Rule apply 
only to the nonprofit entities described in G.S. 
105-164. 14(b), but do not apply to nonprofit fraternal, civic 
or patriotic organizations, notwithstanding that such 
organizations may perform certain charitable functions. 
The refund provisions set forth in this Rule do not apply to 
nonprofit entities which are owned and controlled by the 
United States, the state or a unit of local government except 
hospitals and medical accommodations created under the 
Hospital Authorities Law, Article 2 of Chapter 13 IE of the 
General Statutes and nonprofit hospitals owned and con- 
trolled by a unit of local government that elect to receive 
semiannual refunds under G.S. 105-164. 14fb) instead of 



annual refunds under G.S. 105-164. 14(c). Any nonprofit 
hospital owned and controlled by a unit of local government 
may submit a written request to receive semiannual refunds 
under G.S. 105-164. 14(b) instead of annual refunds under 
G.S. 105-164. 14(c). The request shall be effective begin- 
ning with the six-months refund period following the date 
of the request and applies to sales or use taxes paid on or 
after the first day of the refund period for which the request 
is effective. 

(0 The refund provisions of this Rule are not applica- 
ble to sales taxes incurred by employees on purchases of 
food, lodging or other taxable travel expenses paid by 
employees and reimbursed by the type of nonprofit entities 
named in G.S. 105-164. 14(b). Such expenses are personal 
to the employee since the contract for food, shelter and 
travel is between the employee and the provider and 
payment of the tax is by the employee individually and 
personally. Such nonprofit entities have not incurred and 
have not paid any sales tax liability. In such cases, it has 
chosen to reimburse a personal expense of the employee. 
The refiind provisions of this Rule do not apply to sales tax 
paid by the nonprofit entities named in G.S. 105-164. 14(b) 
on charges by a utility for electricity, piped natural gas and 
local, toll or private telecommunications services; to the 
occupancy taxes levied and administered by certain counties 
and cities in this state; to the prepared food and beverage 
taxes levied by various local governments in North Caro- 
lina; to the highway use taxes paid on the purchase, lease 
or rental of motor vehicles; to the scrap tire disposal tax 
levied on new motor v e hicl e tires; or to the white goods 
disposal tax levied on new white goods. Such taxes shall 
not be included in any claim for refund filed by such 
nonprofit entities. 

Authority G.S. 105-164.14; 105-262; 105-264. 

SECTION .1700 - SALES TO OR BY THE 

STATE: COUNTIES: CITIES: AND OTHER 

POLITICAL SUBDIVISIONS 

.1702 REFUNDS TO COUNTIES: CITIES: 

ETC. 

(a) Governmental entities, as defined by G.S. 
105-164. 14(c), are entitled to an annual refund of sales and 
use taxes paid by them on their direct purchases of tangible 
personal property, subject to the terms and conditions 
hereafter set forth. The refund provisions of this Rule are 
not applicable to sales taxes incurred by employees on 
purchases of food, lodgings or other taxable travel expenses 
paid by employees and reimbursed by governmental 
entities. Such expenses are personal to the employee since 
the contract for food, shelter and travel is between the 
employee and the provider and payment of the tax is by the 
employee individually and personally. The governmental 
entity has not paid any sales tax liability. In such cases, it 
has chosen to reimburse a personal expense to the em- 
ployee. The refund provisions of this Rule do not apply to 



11:12 



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September 16, 1996 



999 



PROPOSED RULES 



sales taxes paid by the governmental entities named in G.S. 
105-164. 14(c) on charges by a utility for electricity, piped 
natural gas and local, toll or private telecommunications 
services; to the occupancy taxes levied and administered by 
counties and cities in this state; to the prepared food and 
beverage taxes levied by various local governments in 
North Carolina; to the highway use taxes paid on the 
purchase, lease or rental of motor vehicles; to the scrap tire 
disposal tax levied on new motor vehicle tires; or to the 
white goods disposal tax levied on new white goods. 
Governmental entities, as defined, and the Federal Govern- 
ment are entitled to annual refunds of sales and use taxes 
paid in North Carolina by their contractors on purchases of 
building materials, supplies, fixtures and equipment which 
become a part of or are annexed to any building or struc- 
ture being erected, altered or repaired under contract with 
such governmental entities which is owned or leased by 
such governmental entities for their use. 

(b) Nonprofit hospitals owned and controlled by a unit 
of local government may file claims for refund of sales and 
use taxes on a semiannual basis under the provisions of 
G.S. 105-164. 14(b) rather than file annually as a part of the 
local government. In order to file semiannually, the 
hospital shall submit a written request to the Secretary of 
Revenue and the request shall be effective beginning with 
the six-month refund period following the date of the 
request and applies to sales and use taxes paid on or after 
the first day of the refund period for which the request is 
effective. 

(c) All refund claims must be substantiated by proper 
documentary proof and only those taxes actually paid by the 
claimant during the fiscal year covered by the refund claim 
may be included in the claim. Any local sales or use taxes 
included in the claim must be separately stated in the claim 
for refund. In cases where more than one county's sales 
and use tax has been paid, a breakdown must be attached 
to the claim for refund showing the amount of each 
county's local tax separately. 

(d) As to taxes paid by governmental entities on 
purchases for use, other than those made by contractors 
performing work for the claimant, invoices or copies of 
invoices showing the property purchased, the cost thereof, 
the date of purchase, the amount of state and local sales or 
use tax paid thereon and a record reflecting the date of 
payment will constitute proper documentary proof. 

(e) To substantiate a refund claim for sales or use 
taxes paid on purchases of building materials, supplies, 
fixtures, and equipment by its contractor, the claimant shall 
secure from such contractor certified statements setting 
forth the cost of the property purchased from each vendor 
and the amount of state and local sales or use taxes paid 
thereon. In the event the contractor makes several pur- 
chases from the same vendor, such certified statement shall 
indicate the invoice numbers, the inclusive dates of the 
invoices, the total amount of the invoices, and the state and 
local sales and use taxes paid thereon. Such statement shall 
also include the cost of any tangible personal property 



withdrawn from the contractor's warehouse stock and the 
amount of state and local sales or use tax paid thereon by 
the contractor. Similar certified statements by his subcon- 
tractors shall be obtained by the general contractor and 
furnished to the claimant. Any local sales or use taxes 
included in the contractor's statements shall be shown 
separately from the state sales or use taxes. The contrac- 
tor's statements shall not contain sales or use taxes paid on 
purchases of tangible personal property purchased by such 
contractors for use in performing the contract which does 
not annex to, affix to or in some manner become a part of 
the building or structure being erected, altered or repaired 
that is owned or leased by a governmental entity for use by 
the governmental entity as defined by G.S. 105-164. 14(c). 
Examples of property on which sales or use tax has been 
paid by the contractor and which shall not be included in 
the contractor's statement are scaffolding, forms for 
concrete, fuel for the operation of machinery and equip- 
ment, tools, equipment repair parts, equipment rentals and 
blueprints. 

Authority^ G.S. 105-164.14; 105-262. 

SECTION .1800 - HOSPITALS AND 
SANITARIUMS 

.1802 REFUNDS TO HOSPITALS: ETC. 

(a) Hospitals, sanitariums, religious institutions and 
organizations, charitable nursing homes, and charitable rest 
homes not operated for profit are entitled to semiannual 
refunds of sales and use taxes paid by them on their direct 
purchases of tangible personal property, including medi- 
cines and drugs, for use in carrying on their work. For the 
purpose of the refund, sales or use taxes paid by contractors 
on their purchases of building materials, supplies, fixtures 
and equipment which become a part of or are armexed to a 
building or structure being erected, altered or repaired 
under contract with such hospitals, sanitariums, charitable 
nursing homes and charitable rest homes that is owned or 
leased by such institutions and used in carrying on their 
nonprofit activities are deemed to be taxes paid on direct 
purchases. 

(b) As to taxes paid on purchases for use other than 
those made by contractors performing work for the claim- 
ant, invoices or copies of invoices showing the property 
purchased, the cost thereof, the date of purchase and the 
amount of sales or use tax paid thereon during the refund 
period will constitute proper documentary proof. To 
substantiate a refund claim for sales or use taxes paid on 
purchases of building materials, supplies, fixtures and 
equipment by its contractor, the claimant shall secure from 
such contractor certified statements setting forth the cost of 
the property purchased from each vendor and the amount of 
sales and use taxes paid thereon. In the event the contrac- 
tor makes several purchases from the same vendor, the 
certified statements may indicate the invoice numbers, the 
inclusive dates of the invoices, the total amount of the 



1000 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



PROPOSED RULES 



invoices and the sales or use taxes paid thereon in lieu of an 
itemized listing of each separate invoice. The statements 
shall also include the cost of any tangible personal property 
withdrawn from the contractor's warehouse stock and the 
amount of sales or use tax paid thereon by the contractor. 
Similar certified statements by his subcontractors shall be 
obtained by the general contractor and furnished to the 
claimant. 

(c) Sales and use taxes paid by hospitals, sanitariums, 
charitable nursing homes and charitable rest homes which 
are agencies of counties and incorporated cities and towns 
on their direct purchases of tangible personal property, 
including medicines and drugs, and by their contractors on 
purchases of building materials, supplies, fixtures and 
equipment becoming a part of or annexing to a building or 
structure being erected, altered or repaired under contract 
with such institutions that is owned or leased by such 
institutions for their own use are also refundable; however, 
such refund shall be included in the claim filed by the 
county or incorporated city or town which is to be filed 
within six months after the close of the claimant's fiscal 
year. The documentary proof as explained in Paragraph (b) 
of this Rule shall be submitted to the county or incorporated 
city or town filing the claim. The refund provisions are not 
applicable to hospitals, sanitariums, charitable nursing 
homes and charitable rest homes which are agencies of the 
state or any political subdivisions thereof other than 
counties and incorporated cities and towns. Nonprofit 
hospitals owned and controlled by a unit of local govern- 
ment may file for a refund on a semiannual basis under 
G.S. 105-164. 14(b) rather than file annually as a part of the 
local government unit. In order to file semiannually, the 
institution shall submit a written request to do so to the 
Secretary of Revenue and the request is effective beginning 
with the six-months refiind jieriod following the date of the 
request and applies to sales and use tax paid on or after the 
first day of the refund period for which the request is 
effective. 

(d) The refund provisions set forth in Paragraphs (a), 
(b) and (c) of this Rule are not applicable to taxes paid by 
hospitals, sanitariums, religious institutions and organiza- 
tions, charitable nursing homes and charitable rest homes 
on their taxable sales and these taxes shall not be refunded 
or claimed as a refund. The refund provisions are not 
applicable to sales tax incurred by employees on purchases 
of food, lodgings or other taxable travel expenses paid by 
employees and reimbursed by the institution. Such ex- 
penses are personal to the employee since the contract for 
food, shelter and travel is between the employee and the 
provider and payment of the tax is by the employee 
individually and personally and such tax shall not be 
refiinded under the provisions of this Rule. The institution 
has incurred and paid no sales tax liability. In such cases, 
it has chosen to reimburse a personal expense of the 
employee. 

(e) The refund provisions set forth in Paragraphs (a), 
(b) and (c) of this Rule are not applicable to sales taxes 



paid by hospitals, sanitariums, charitable nursing homes and 
charitable rest homes on charges by a utility for electricity, 
piped natural gas and local, toll or private telecommunica- 
tions services; to the occupancy taxes levied and adminis- 
tered by certain counties and cities in this state; to the 
prepared food and beverage taxes levied by various local 
governments in North Carolina; to the highway use taxes 
paid on the purchase, lease or rental of motor vehicles; to 
the scrap tire disposal tax levied on new motor vchiolo 
tires; or to the white goods disposal tax levied on white 
goods. 

Authority G.S. 105-164.14; 105-262; 105-264. 

SECTION .3100 - RADIO AND TELEVISION 
STATIONS: MOTION PICTURE THEATRES 

.3103 RENTAL OF FILMS: RECORDINGS 

Receipts derived from the lease or rental of motion 
picture film or prerecorded videotape cassettes to theaters 
or similar businesses for exhibition to the public and 
receipts derived from the lease or rental of such film or 
prerecorded videotape cassettes to schools, churches, 
hospitals, prisons and similar institutions and organizations 
for exhibition to students, congregations, patients and 
inmates are exempt from sales or use tax. Receipts derived 
from the lease or rental of motion picture film or prere- 
corded videotape cassettes to businesses, individuals, 
organizations and other lessees for any use other than for 
public exhibition are subject to the four percent state and 
any applicable local sales or use tax. Th e sal e , l e as e or 
rental of motion picture film or videotape caoacttoa to usora 
or conaumors other than to tolovigion oomponios for use in 
broadcasting ar e subj e ct to th e applicabl e stat e and local 
sales or use tax rogardlosa of wh e th e r tho film or vid e otape 
caaactto — ia publicly or privately oxhibitod. Projection 
equipment, screens, advertising matter and other tangible 
personal property which are leased, rented or sold at retail 
for use in showing film or videotape cassettes are subject to 
the applicable state and local sales or use tax regardless of 
whether the film or videotape is privately or publicly 
exhibited. 

Authority G.S. 105-164.4; 105-164.13; 105-262. 

.3106 COMMERCIAL CABLE TELEVISION 

COMPANIES 

(a) For the purpose of applying the maximum tax of 
eighty dollars ($80.00) per article, a television tower is a 
single article when the complete tower is sold by the same 
vendor. The tower anterma is considered to be a separate 
single article. Sales of antenna cable, transmission cable 
and trunk, feeder and drop cable to cable television compa- 
nies for use in broadcasting are subject to a one percent rate 
of tax without any maximum tax applicable thereto. The 
term "commercial cable television company," as used in 
this Rule, means a cable television company that receives 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



1001 



PROPOSED RULES 



consideration from its subscribers and uses broadcasting 
equipment and parts and accessories and/or a tower to 
receive and prepare signals for transmission over their cable 
systems and also is regulated and supervised by the Federal 
Communications Commission. 

(b) Charg e s TTie sale of developed movie film to 
commercial cable television stations which operate under 
the regulation and supervision of the Federal Communica- 
tions Commission for dovolopod film for use by them in 
broadcasting and telecasting programs af» is subject to the 
one percent rate of tax. 

(c) Taxable tangible personal property purchased by 
cable television companies other than towers, antennas and 
purchases of broadcasting equipment and parts and accesso- 
ries thereto are subject to the four percent state tax and any 
applicable local sales or use tax. 

Authority G.S. 105-164.4; 105-164.6: 105-262. 

SECTION .4200 - SALES TO THE UNITED 

STATES GOVERNMENT OR AGENCIES 

THEREOF 

.4202 EXEMPT SALES TO THE UNITED 

STATES GOVERNMENT 

(a) Purchase Requisitions. A vendor making sales 
directly to the United States Government, or any agency or 
instrumentality thereof, that issues purchase requisitions or 
affidavits must obtain and keep copies of such purchase 
requisitions or affidavits signed by the purchasing officer 
stating that such sales are being made directly to the United 
States Government or an agency or instrumentality thereof. 
Copies of such purchase requisitions or affidavits must be 
retained by the vendor in his files for three years following 
the date of sale and must be available for inspection by the 
Secretary of Revenue or her agents upon request. 

(b) VISA I.M.P.A.C. Credit Card: All departments 
and agencies within the Federal Government are authorized 
to use the United States Government VISA I.M.P.A.C. 
(International Merchant Purchase Authorization Card) card 
in connection with their purchases. This card is a purchas- 
ing card and may not be used by employees for travel or 
entertainment. The United States Government obtains title 
to the property purchased by the use of the card and pays 
the bank directly for the property. The first four digits of 
the account number (4716) identify it as a United States 
Government card. The card is printed with the legend "US 
GOVT TAX EXEMPT" and "FOR OFFICIAL USE 
ONLY" on its face along with the name of the card holder. 
Copies of credit card receipts must be retained by the 
vendor in his files for three years following the date of sale 
and must be available for inspection by the Secretary of 
Revenue or her agents upon request. 

(c) American Express Credit Cards: The United States 
Government and its employees also use American Express 
Credit Cards in connection with authorized travel and 
lodging expense. The card is printed with the legend 



"United States Government" and "For Official U.S. 
Government Travel Only" on its face. It also bears the 
inclusive dates during which the card is effective, the name 
of the government employee and their employing agency. 
TTie account number on a credit card indicates whether it is 
an individually billed or centrally billed account. Account 
numbers with a prefix of 37837 or 37856 are assigned to 
military personnel and account numbers with a prefix of 
37838 or 37855 are assigned to civilian employees. 
Charges incurred on cards bearing the aforementioned 
prefixes are subject to the applicable state and county sales 
tax since the transactions do not constitute sales directly to 
the United States Government. The individual to whom the 
card is assigned must pay the charges and seek reimburse- 
ment from their agency. Cards bearing a prefix of 37839 
are centrally billed accounts and are not subject to sales tax 
since the charges on the card are paid directly by the 
Government. Such transactions constitute direct sales to the 
United States Government. Copies of credit card receipts 
must be retained by the vendor in his files for three years 
following the date of sale and must be available for inspec- 
tion by the Secretary of Revenue or her agents upon 
request. 

Authority G.S. 105-164.13; 105-262. 

SECTION .4500 - LAUNDRIES: DRY 

CLEANING PLANTS: LAUNDERETTES: 

LEVEN RENTALS: AND SOLICITORS 

FOR SUCH BUSINESSES 

.4501 RECEIPTS OF LAUNDRIES: ETC. 

(a) The gross receipts derived from the following are 
subject to the four p)ercent state tax and any applicable local 
sales or use tax: 

(1) services rendered by pressing clubs, cleaning 
plants, hat blocking establishments, dry clean- 
ing plants, laundries, including wet or damp 
wash laundries and businesses known as 
launderettes and launderalls, and all similar 
type businesses; 

(2) the rental of clean linen, towels, wearing 
apparel and similar items; 

(3) soliciting cleaning, pressing, hat blocking and 
laundry or linen rental business; 

(4) rug cleaning services performed by persons 
operating rug cleaning plants or performed by 
any of the businesses named in this Rule when 
the rug cleaning service is performed at the 
plant. Receipts from rug cleaning services 
performed at the customer's location by any of 
the businesses included in this Rule are not 
subject to sales and use tax; 

(5) charges for laundering or dry cleaning linen, 
towels, wearing apparel and similar items 
owned by lessors which is held for lease or 
rental. 



1002 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



PROPOSED RULES 



Retail sales of detergents, bleaches and other taxable items 
of tangible personal property through vending machines 
continue to be subject to the four percent state tax and any 
applicable local sales or use tax. 

(b) Charges by the businesses named in (a) of this 
Rule for alterations or storage of garments are not a part of 
the gross receipts subject to tax when such charges are 
separately stated on their invoices and in their records. 
When such charges are not separately stated, the total 
charge is subject to the four percent state tax and any 
applicable local sales or use tax. Sal es of thr e ad, buttons, 
zippers. — pookota. — and — other — s imilar — tangible — personal 
proport)' to such businesses for u s e or con s umption in 
making r e pairs and alt e ration s to garm e nts b e ing laund e r e d, 
cl e an e d or pr e ss e d ar e subj e ct to th e four p e rc e nt state tax 
and any applicable local sales or use tax. 

(c) Sales to the businesses named in Paragraph (a) of 
this Rule, other than lessors, of thread, buttons, zippers, 
pockets and other similar tangible personal property for use 
or consumption in making repairs or alternations to gar- 
ments being laundered, cleaned or pressed are subject to the 
4% state and any applicable local sales or use tax. Sales to 
lessors of such items for use or consumption in making 
repairs or alterations to garments held for lease or rental 
which are being laundered, cleaned or pressed are exempt 
from sales or use tax. 

(d) (e^When in addition to the services named in 
Paragraph (a) of this Rule, the herein-named busmesses 
make retail sales of tangible personal property for which a 
separate charge is made, such sales are subject to the four 
percent state tax and any applicable local sales tax. Any 
charge for labor or services rendered in applying or 
installing such property are not subject to tax provided such 
charges are segregated from the charge for the tangible 
personal property sold on the invoice given to the customer 
at the time of the sale and in the vendor's records; other- 
wise, the total amount is subject to tax. 

(e) (d)Retailers of the services named in Paragraph (a) 
of this Rule are liable for the four percent state tax and any 
applicable local sales or use tax on the gross receipts 
derived from their services; however, the tax does not 
apply to gross receipts from such services performed for 
resale by retailers that pay the tax on their receipts from the 
services. 

Authority G.S. 105-164.4; 105-262. 



11:12 NORTH CAROLINA REGISTER September 16, 1996 1003 



TEMPORARY RULES 



Tlie Codifier of Rules has entered the following temporary nde(s) in the North Carolina Administrative Code. Pursuant 
tu G.S. ]50B-2I.](e), publication of a temporary rule in the North Carolina Register senses as a notice of rule-making 
proceedings unless this notice has been pre\'iously published by the agency. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

Rule-making Agency: EHNR - Sod and Water Conserva- 
tion Commission 

Rule Citation: 15A NCAC 6E .0002 and .0005 

Effective Date: September 23, 1996 

Findings Reviewed by Beecher R. Gray: Approved 

Authority for the rule-maiving: G.S. 139-3; 139-4; 139- 
8; 143-215. 74; 143B-294 

Reason for Proposed Action: Tlie purpose of this 
rulemaking is to adopt rules consistent with the directives of 
the North Carolina General Assembly with regard to the use 
of Agriculture Cost Share funds for animal operations. The 
proposed rules will allow the Soil and Water Conservation 
Commission to allocate funding for animal waste manage- 
ment so as to have the greatest impact in improving water 
quality. 

Comment Procedures: Comments, statements, data and 
other information may be submitted in writing within 60 
days after the date of publication of this issue of the North 
Carolina Register. Copies of the proposed rules and 
information package may be obtained by contacting the 
Division of Soil and Water Conservation at (919) 715-6109. 
Written comments may be submitted to Vernon Cox, 
Division of Soil arid Water Consenation , P.O. Box 27687, 
Raleigh, North Carolina 27611-7687. 

CHAPTER 6 - SOIL AND WATER 
CONSERVATION COM\nSSION 

SUBCHAPTER 6E - AGRICULTURE COST SHARE 

PROGRAM FOR NONPOCVT SOURCE POLLUTION 

CONTROL 

.0002 DEFINITIONS FOR SUBCHAPTER 6E 

(a) Agricultural Nonpoint Source (NFS) Pollution 
means pollution originating from a diffuse source as a result 
of agricultural activities related to crop production, animal 
production units and land application of waste materials. 

(b) Allocation means the annual share of the state's 
appropriation to participating districts. 

(c) Annual Agreement (AA) means a binding agree- 
ment between the district and the applicant that provides for 
cost sharing for installing best management practices and 
maintenance of the best management practices. 



(d) Applicant means a person(s) who applies for best 
management practice cost sharing monies from the district. 
Multiple owners of a farming operation may apply under 
their individual names in the same program year as long as 
the total cumulative requests do not exceed the limits 
established in Rule .0005(e) of this Section or in the 
approved Average Cost Guide. 

(e) Average Costs means the calculated cost, deter- 
mined by averaging recent actual costs and current cost 
estimates necessary for best management practice imple- 
mentation. Actual costs include labor, supplies, and other 
direct costs required for physical mstallation of a practice. 

(f) Best Management Practice (BMP) means a struc- 
tural or nonstructural management based practice used 
singularly or in combination to reduce nonpoint source 
inputs to receiving waters. 

(g) Conservation Plan of Operation (CPO) means a 
written plan scheduling the apphcant's decisions concerning 
land use, and both cost shared and non-cost shared BMP's 
to be installed and maintained on the operating unit. 

(h) Cost Share Agreement means an annual or long 
term agreement between the applicant and the district which 
defines the BMP's to be cost shared, rate and amount of 
payment, mmimum practice life, and date of BMP installa- 
tion. The agreement also states that the recipient will 
maintain and repair the practice(s) for the specified mini- 
mum life of the practice. 

(i) Cost Share Incentive (CSI) means a predetermined 
fixed annual payment paid to an applicant for implementing 
a BMP in lieu of a full 75 percent cost share. 

(j) Cost Share Rate means a cost share [percentage paid 
to an applicant for implementing BMP's. 

(k) Detailed Implementation Plan means the plan 
approved by the commission that specifies the guidelines for 
the current program year; including, BMP's that will be 
eligible for cost sharing and the minimum life expectancy 
of those practices. 

(1) Distnct BMP means a BMP designated by a district 
to reduce the delivery of agncultural NPS pollution and 
whicti is reviewed and approved by the division to be 
technically adequate prior to funding. 

(m) Encumbered Funds means monies from a district's 
allocation which have been committed to an applicant after 
initial approval of the cost share agreement. 

(n) Full Time Equivalent (FTE) means 2,080 hours 
per annum which equals one full time technical position. 

(o) In-kind Contribution means a contribution by the 
applicant towards the implementation of BMP's. In-kind 
contributions shall be approved by the district and can 
include but not limited to labor, fuel, machinery use, and 
acceptable supplies and materials. 

(p) Landowner means any natural person or other 
legal entity, including a governmental agency, who holds 



1004 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



TEMPORARY RULES 



either an estate of freehold (such as a fee simple absolute 
or a life estate) or an estate for years or from year to year 
in land, but does not include an estate at will or by suffer- 
ance in land. Furthermore, a governmental or 
quasi-governmental agency such as a drainage district or a 
soil and water conservation district, or any such agency, by 
whatever name called, exercising similar powers for similar 
purposes, can be a landowner for the purposes of these 
rules if the governmental agency holds an easement in land. 

(q) Long Term Agreement (LTA) means a binding 
agreement between the district and the applicant that 
includes the plan of operation and which sets forth cost 
sharing for BMP installation and maintenance. The LTA 
shall have a maximum contract life of three years for BMP 
installation. The district must perform an annual status 
review during the installation period. 

(r) Program Year means the period from July 1 
through June 30 for which funds are allocated to districts. 

(s) Proper Maintenance means that a practice(s) is 
being maintained such that the practice(s) is successfully 
performing the function for which it was originally 
implemented. 

(t) Soil Loss Tolerance (T) means the maximum 
allowable aimual soil erosion rate to maintain the soil 
resource base, depending on soil type. 

(u) Strategy Plan means the annual plan for the N. C. 
Agriculture Cost Share Program for Nonpoint Source 
Pollution Control to be developed by each district. The 
plan identifies pollution treatment needs and the level of 
cost sharing and technical assistance monies required to 
address those annual needs in the respective district. 

(v) Technical Representative of the district means a 
person designated by the district to act on their behalf who 
participates in the planning, design, implementation and 
inspection of BMP's. These practices shall be technically 
reviewed by the division. The district chairman shall 
certify that the technical representative has properly 
planned, designed and inspected the BMP's. 

(w) Unencumbered Funds means the portion of the 
allocation to each district which has not been committed for 
cost sharing by the first Wednesday of March of the current 
fiscal year. 

History Note: Authority G.S. 139-3; 143-215.74; 

143B-294; 

Ejf. May 1. 1987; 

Temporary Amendment Eff. September 23, 1996. 

.0005 COST SHARE AND INCENTIVE 

PAYMENTS 

(a) Cost share and incentive payments can be made 
through LTA's or AA's between the district and the 
applicant. It shall be the policy of the commission to 
encourage the use of LTA's over the use of AA's. 

(b) For all practices except those eligible for CSL the 
state will provide 75 percent and the applicant 25 percent 
of the average cost for BMP installation. In-kind contribu- 



tions by the applicant shall be included in the applicants' 
cost share contribution. In-kind contributions shall be 
specified in the agreement for cost sharing and shall be 
approved by the district. 

(c) Payments for BMP's restricted to the CSI shall be 
limited to a maximum of three years per farm. 

(d) Average installation costs for each comparative 
area or region of the state and the amount of cost share 
incentive payments will be updated and revised annually by 
the division for approval by the commission. 

(e) The maximum total cost share payments to an 
applicant shall be limited to fifteen thousand dollars 
($15,000) per year for non-animal agricultural operations 
and abandoned animal operations. The maximum total cost 
share payments for active animal agricultural operations 
shall be limited to seventy-five thousand dollars ($75,000) 
per year per applicant. Active animal agricultural 
operations shall be limited to a cumulative total of one 
hundred fifty thousand dollars ($150.000) as computed from 
June 21, 1996. 

(f) Cost share payments to implement BMP's under 
this program can be combined with other fiinding programs, 
as long as the combined cost share rate does not exceed the 
amount set forth in Rules .0005 (b) and (e) of this 
Subchapter. 

(g) Use of cost share payments is restricted to land 
located within the county approved for funding by the 
commission. In the situation where an applicant's farm is 
not located solely within a county, the entire farm, if 
contiguous, will be eligible for cost share payments. 

(h) Cost share payments shall not be used on or for 
local, state or federal government land unless approved by 
the commission. 

(i) Districts are not authorized to approve cost share 
contracts on agricultural operations that are not in place, 
and therefore are not causing an offsite water quality 
problem. 

(i) Districts are not authorized to approve cost share 
contracts on animal operations that have been abandoned 
for four years or more prior to repopulation with animals. 

(k) The Commission has the sole authority to approve 
cost share contracts developed for the proper closure of 
abandoned confined animal operations. 

£1} The Commission has the sole authority to approve 
cost share contracts developed for agricultural operations 
that were established after May 31, 1992. 

(m) On animal operations that expand after May 31. 
1992, the cost share contract amount must be limited to the 
animal waste design treatment and storage capacity neces- 
sary to provide animal waste treatment and storage at the 
pre-expansion level. 

History Note: Authority G.S. 139-4; 139-8; 143-215.74; 

143B-294; 

Eff. May 1. 1987; 

Temporary Amendment Eff. September 23, 1996. 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



1005 



APPROVED RULES 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its 
meeting of Ausust 15, 1996 pursuant to G.S. 150B-21. 17(a)(1) and reported to the Joint Legislative Administrative 
Procedure Oversight Committee pursuant to G.S. 150B-21.16. The full text of rules are published below when the 
rules have been approved by RRC in a form different from that originally noticed in the Register or when no notice 
was required to be published in the Register. The rules published in full text are identified by an * in the listing of 
approved rules. Statutory Reference: G.S. 150B-21.17. 

These rules will become effective on the 31st legislative day of the 1997 Regular Session of the General Assembly or 
a later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically 
disapproves the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the day the 
bill receives an unfavorable final action or the day the General Assembly adjourns. Statutory reference: G.S. 150B- 
21.3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



15A 


NCAC 


lOF 


0104 


* 


15A 


NCAC 


lOF 


0105 


* 


15A 


NCAC 


lOF 


0105 


* 


19A 


NCAC 


02D 


0425 


* 


19A 


NCAC 


02D 


1101 




19A 


NCAC 


02D 


1103 


* 


19A 


NCAC 


02D 


1104 


* 


19A 


NCAC 


02D 


1105 


* 


19A 


NCAC 


02D 


1106 




19A 


NCAC 


02D 


1107 




19A 


NCAC 


02D 


1109 


* 


19A 


NCAC 


02D 


1110 


* 


19A 


NCAC 


02D 


1112 




19A 


NCAC 


06B 


0401 




19A 


NCAC 


06B 


0402 




19A 


NCAC 


06B 


0403 




19A 


NCAC 


068 


0404 




19A 


NCAC 


06B 


0405 




19A 


NCAC 


06B 


0406 




19A 


NCAC 


068 


0407 




19A 


NCAC 


068 


0408 




19A 


NCAC 


068 


0409 




19A 


NCAC 


068 


0410 




19A 


NCAC 


068 


0411 




19A 


NCAC 


068 


0413 




19A 


NCAC 


068 


0414 




19A 


NCAC 


068 


0415 




19A 


NCAC 


068 


0416 




I9A 


NCAC 


068 


0417 





11:01 NCR 19 
Not Required, G.S. 
11:01 NCR 19 
Not Required, G.S. 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
1 1 :05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 
11:05 NCR 270 



1508-2 1.5(a) 
1508-21. 5(a)(2) 



TITLE 15A 

DEPARTMENT OF ENVIRONMENT, HEALTH, 

AND NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER lOF - MOTORBOATS AND WATER 
SAFETY 



SECTION .0100 - MOTORBOAT REGISTRATION 

.0104 CERTIFICATE OF NUMBER 

(a) General. Upon receipt of a prop e rly completed 
application, together with appropriate fee, the Wildlife 
Resources Commission shall issue to the applicant a 
certificate of vessel number which shall includ e th e follow 
ing information: authorize the operation of the vessel. The 
certificate of vessel number shall be carried while operating 
the vessel and shall be presented for inspection to any law 



1006 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



APPROVED RULES 



enforcement officer upon request. The certificate of vessel 
number shall include the following information: 

(1) name of own e r: owner(s); 

(2) address of owner, including zip code; 

(3) state of principal use of vessel; 

(4) number awarded to vessel; 

(5) expiration date of certificate; 

(6) use of vessel (pleasure, livery, demonstration, 
commercial passenger, commercial fishing, 
other); 

(7) make of vessel (if known); 

(8) year of manufacture or model year (if known); 

(9) manufacturer's hull identification number (if 
any); 

(10) overall length of vessel; 

(11) type of vessel (open, cabin, house, other); 

(12) hull material (wood, steel, aluminum, fiberglass, 
plastic, other); 

(13) type of propulsion (inboard, outboard, in- 
board-outdrive, sail); 

(14) type of fuel (gasoline, diesel, other); 

(15) notice to owner that he shall report within 15 
days changes of address or ownership, and 
destruction or abandonment of vessel; 

(16) notice to the owner that the operator shall: 

(A) always carry this certificate on vessel 
when in use; 

(B) report every accident involving injury or 
death to persons, or property damage over 
one hundred dollars ($100.00); 

(C) stop and render assistance if involved in 
boating accident. 

(b) Livery Motorboat Vessel Owners. The certificate of 
number awarded to a livery motorboat vessel shall be 
plainly marked "livery motorboat" vessel" and in any case 
where the motor is not rented with the vessel, the descrip- 
tion of the motor and type of fuel shall be omitted from the 
certificate. 

(c) Dealers and Manufacturers. The certificate of vessel 
number awarded to dealers and manufacturers shall be 
plainly marked "dealer" or "manufacturer" in lieu of the 
description of the boat, motor and type of fuel. Any dealer 
or any permittee of a dealer demonstrating or testing a 
vessel may utilize a set of dealer's numbers and the 
corresponding dealer's certificate of vessel number to 
operate any vessel held for sale, but only for demonstration 
or testing purposes. Vessels owned or possessed by dealers 
for personal use or for any use whatsoever other than for 
demonstration and testing purposes must be individually 
registered in the name of the dealer in accordance with 
Paragraph (a) of this Rule. 

(d) Vessel Registration Agents. In order to make 
certificates of vessel number readily available throughout 
the State, vessel dealers, manufacturers, and other related 
businesses which operate from established locations within 
North Carolina may be appointed as agents of the Wildlife 
Resources Commission and authorized to issue and renew 



certificates of vessel number and handle related transac- 
tions. To be appointed as a Vessel Registration Agent, a 
business shall enter into a written agreement with the 
Wildlife Resources Commission through which the agent 
agrees to conduct the Vessel Registration Agency as a 
public service and to comply with governing statutes and 
rules. Upon ratification of the agreement by the Executive 
Director, the agent is authorized to purchase blocks of at 
least five certificates of number for three-year vessel 
registrations only, to be issued to owners of new vessels 
and to owners of vessels not previously registered in North 
Carolina. 

History Note: Legislative Objection Lodged Eff. December 

16, 1980; 

Authority G.S. 75A-3; 75A-5; 75A-7; 75A-19; 33 C.F.R. 

174.19; 

Eff. February 1, 1976; 

Amended Eff. March L i997; July 1, 1988; August 31, 

1980; January 1, 1980. 

.0105 NUMBERING PATTERN 

(a) The motorboat number assigned shall consist of the 
symbol "NC" identifying the state, followed by not more 
than four Arabic numerals and two capital letters, in 
sequence, separated by a hyphen or equivalent space, in 
accordance with the serials, numerically and alphabetically. 
As examples: NC-l-A or NC-1234-AA. 

(b) Since the letters "I," "O," and "Q" may be mistaken 
for Arabic numerals, they shall not be used in the letter 
sequences. Letters, or letters and numbers, forming 
objectionable words or combinations will not be used. 

(c) The single letter "P" shall be reserved for use 
following the numerals of motorboats numbered by govern- 
mental entities aa provided by Rule ■010'1(a)(5) of this 
S e ction . 

History Note: Authority G.S. 75A-3; 75A-5; 75A-7; 33 

C.F.R. 174.23; 

Eff. February 1, 1976; 

Amended Eff. September i, 7996,- August 31, 1980. 

.0105 NUMBERING PATTERN 

(a) The motorboat vessel number assigned shall consist 
of the symbol "NC" identifying the state, followed by not 
more than four Arabic arable numerals and two capital 
letters, in sequence, separated by a hyphen or equivalent 
space, in accordance with the serials, numerically and 
alphabetically. As examples: NC-l-A or NC-1234-AA. 

fb) Since the letters "L" "O," and "Q" may be mistaken 
for Arabic arable numerals, they shall not be used in the 
letter sequences. Letters, or letters and numbers, forming 
objoctionabl o words or combinations wiH shall not be used. 

(c) The single letter "P" shall be reserved for use 
following the numerals of motorboats vessels numbered by 
governmental entities. 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



1007 



APPROVED RULES 



History Note: Authority G.S. 75A-3; 75A-5; 75A-7; S3 

C.F.R. 174.23; 

Ejf. February 1, 1976: 

Amended Eff. March L 1997: September 1, 1996; August 

31, 1980. 



TITLE 19A - DEPARTMENT OF STATE 
TRANSPORTATION 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2D - HIGHWAY OPERATIONS 

SECTION .0400 - FIELD OPERATIONS - 
MAINTENANCE AND EQUIPMENT 

.0425 FEDERAL DISASTER ASSISTANCE 

The Managor of tha Maintonano e and Equipm e nt Branch 
Deputy Chief Engineer-Operations shall execute applica- 
tions, assurances and agreements and other documents on 
behalf of the Department of Transportation necessary to 
receive Federal Disaster Assistance from the Federal 
Emergency Management Agency. 

History Note: Authority G.S. 136-18; 136-4; 143B-350; 

Eff. October 1. 1991; 

Amended Eff. April L, 1997; November 1, 1993. 

SECTION .1100 - DISADVANTAGED BUSINESS 

ENTERPRISE, MINORITY BUSINESS 

ENTERPRISE AND WOMEN BUSINESS 

EIVTERPRISE PROGRAMS FOR HIGHWAY AND 

BRIDGE CONSTRUCTION CONTRACTS 

. 1 103 CERTIFICATION OF FIRMS 

(a) Any Disadvantaged Business Enterprise. Minority 
Business Enterprise, or Women Business Enterprise firms 
wishing to participate in the goals programs of the Depart- 
ment shall be certified by the Department. 

(h) The Department shall conduct a certification review 
after it receives a completed Schedule A and checklist 
which is available at no cost from the Civil Rights and 
Business Development Section of the Contractual Services 
Unit, P.O. Box 25201, Raleigh. NC, telephone 919-733- 
2300. The certification review shall be conducted in 
accordance with the Code of Federal Regulations, 49 CFR 
23. The standards of eligibility shall be those prescribed by 
the Code of Federal Regulations. 49 CFR 23.53. which is 
hereby incorporated by reference including all subsequent 
amendments and editions. This publication is available at 
a cost of twenty-three dollars ($23.00) from the U.S. 
Government Printing Office. Superintendent of Documents, 
Mail Stop SSOP. Washington. DC 20402-9328. telephone 



Eff. April 30. 1997. 

.1104 ANNUAL RENEWAL OF CERTIFICATION 

(a) Each firm certified as a Disadvantaged Business 
Enterprise. Minority Business Enterprise, or Women 
Business Enterprise shall renew its certification annually. 
TTie annual review shall be conducted in accordance with 
the Code of Federal Regulations. 49 CFR 23. 

(b) In the event a firm fails to renew its certification 
within 15 months of the issuance of its most recent certifi- 
cation, that firm's name shall be removed from the Depart- 
ment's Disadvantaged/MinorityAVomen Business Enterprise 
Directory which shall be published monthly and may be 
obtained at no cost from the Division of Highways. P.O. 
Box 25201. Raleigh. NC 27611. telephone 919-733-2300. 



History Note: Authority G.S. 143B-348; 
Eff. April 30. 1997. 

.1105 CHANGE IN OWNERSHIP OR CONTROL 

(a) At any time there shall be a change of ownership or 
control of a firm certified with the Department, that firm 
shall submit a revised Schedule A which shall be available 
at no cost from the Civil Rights and Business Development 
Section of the Contractual Services Unit. P.O. Box 25201. 
Raleigh. NC 27611. telephone 919-733-2300. 

(b) The Department shall evaluate the firm using 
standards of eligibility as prescribed in the Code of Federal 
Regulations, 49 CFR 23.53. 

History Note: Authority G.S. 143B-348; 
Eff. April 30, 1997. 

.1109 COUNTE^JG PARTICIPATION TOWARD 
MEETING THE GOAL 

(a) All bidders, at the time a bid proposal is submitted, 
shall also submit a listing of participation on the appropriate 
form, contained in the proposal, in order for the bid to be 
considered responsive. For a firm to be counted toward 
meeting the goal, the firm shall be certified by the Depart- 
ment as evidenced by a current letter of certification or by 
its listing on the current Disadvantaged/Minority/Women 
Business Enterprise Directory, which shall be published 
monthly by the department and shall be available at no cost 
from the Civil Rights & Business Development Section, 
P.O. Box 25201, Raleigh, NC 27611. telephone 919-733- 
2300. 



202-512-1800. 



Histor\' Note: Authority' G.S. 136-28.4; 143B-348; 



(b) If a firm is determined to be an eligible firm and 
certified by the Department, the total dollar value of the 
participation provided by the firm shall be counted toward 
the goal. The total dollar value of participation by the 
certified firm shall be based upon unit or lump sum prices 
agreed upon by the prime contractor and the certified firm. 

(c) The Contractor may count toward its appropriate 
goal a portion of the total dollar value of participation with 
a joint venture eligible under the standards of this Rule 
equal to the percentage of the ownership and control of the 



1008 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



APPROVED RULES 



eligible partner in the joint venture. 

(d) The Contractor may count toward its goal only the 
expenditures to the certified eligible firm that perform a 
commerci ally useful function in the work of a contract. An 
eligible firm is considered to perform a commercially useful 
function when it is responsible for execution of a distinct 
element of the work of a contract and carrying out its 
responsibilities by actually performing, managing, and 
supervising the work involved. To determine whether an 
eligible firm is performing a commercially useful function, 
the Department shall evaluate the amount of work subcon- 
tracted, industry practices, and other relevant factors. 

(e) A contractor may count toward its goal 60 percent of 
its expenditures for materials and supplies required to 
complete the contract and obtained from an eligible regular 
dealer, and 100 percent of such expenditures to an eligible 
manufacturer. 

£f) A contractor may count toward its goal the following 
expenditures to eligible firms that are not manufacturers or 
regular dealers: 

(1) The fees and commissions charged for providing 
a bona fide service such as professional, techni- 
cal, consultant, or managerial services and assis- 
tance in the procurement of essential personnel, 
facilities, equipment, or supplies required for the 
performance of the contract, provided that the fee 
or commission is determined by the Department 
to be reasonable and not excessive as compared 
to fees customarily allowed for similar services. 

(2) The fees charged for the delivery of materials 
and supplies required on a job site (but not the 
cost of the materials and supplies themselves) 
when the hauler, trucker, or delivery service is 
not also the manufacturer of or a regular dealer 
in the materials and supplies, provided that the 
fee is determined by the Department to be rea- 
sonable and not excessive as compared with fees 
customarily allowed for similar services. 

(3) The fees or commissions charged for providing 
any bonds or insurance specifically required for 
the performance of the contract provided that the 
fee or commission is determined by the Depart- 
ment to be reasonable and not excessive as 
compared with the fees customarily allowed for 
similar services. 

(g) For a given contract line item or contracts financed 
with non-federal funds, the Contractor shall designate the 
goal to which the total dollar value of participation awarded 
to a firm owned and controlled by a minority woman shall 
be credited. The total dollar value for such firms shall be 
credited to one goal only and shall not be split or duplicated 
between the Minority Business or Women Business goals. 

(h) On projects funded entirely with non-federal funds, 
should the contractor submit with his bid submittal partici- 
pation in excess of tjie goal(s) by an amount equal to or 
greater than one thousand dollars ($1,000), then the 
Department shall place on deposit for future use by the 



contractor the amount of participation in excess of the 
goal(s). Separate accounts shall be maintained by the 
Department for minority and women goals. The contractor 
may accumulate excess participation for a period not to 
exceed 24 months. 

History Note: Authority G.S. 136-28.4; 143B-348; 
Eff. April 30. 1997. 

.1110 NON- ATT AEVMENT OF GOALS 

(a) When the low bidder fails to obtain the participation 
required to satisfy goals established in the project proposal. 
he shall submit information to demonstrate to the Depart- 
ment he has made sufficient reasonable good faith efforts to 
satisfy the goals. The submission shall be received by the 
Department on or prior to the date and time specified in the 
project proposal. The following factors shall be evaluated 
by the Department prior to determining whether the 
contractor has demonstrated good faith efforts: 

(1) Whether the bidder attended any pre-bid meetings 
that were scheduled by the Department to inform 
eligible firms of subcontracting opportunities; 

(2) Whether the bidder provided written notice to a 
reasonable number of eligible firms that their 
interest in the contract was being solicited; 

(3) Whether the bidder followed up initial solicita- 
tions of interest by contacting eligible firms to 
determine with certainty they were interested; 

(4) Whether the bidder selected portions of the work 
to be performed by eligible firms in order to 
increase the likelihood of meeting the contract 
goals; 

(5) Whether the bidder provided interested eligible 
firms with adequate information about the plans, 
specifications, and requirements of the contract; 

(6) Whether the bidder negotiated in good faith with 
interested eligible firms not rejecting them as 
unqualified without sound reasons based on a 
thorough investigation of their capabilities; 

(7) Whether quotations were received from interested 
eligible firms but rejected as unacceptable without 
sound reasons why the quotations were consid- 
ered unacceptable. For projects funded in whole 
or part with Federal funds, the fact that the DEE 
firm's quotation for the work is iiot the lowest 
quotation received shall not in itself be consid- 
ered a sound reason for rejecting the quotation as 
unacceptable. Nothing in this Rule shall be 
construed to require the Contractor to accept 
unreasonable quotes in order to satisfy the goals; 
Whether the bidder made efforts to assist inter- 



£8} 



(9) 



ested eligible firms in obtaining any required 
insurance; 



Whether the bidder specifically negotiated with 
subcontractors to assume part of the responsibility 
to meet the contract goals, 
(b) In the event one bidder is the apparent low bidder on 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



1009 



APPROVED RULES 



two projects within the same letting and located in the same 
geographic area of the state, as a part of the good faith 
effort, the Department shall consider allowing the bidder to 
combine participation in like goals programs as long as the 
overall goal value of both projects is achieved. 

(c) In the event the apparent low bidder on a project 
funded entirely with non-federal funds fails to meet the 
goal(s) required by the proposal, he may as a part of his 
good faith effort, request the Department to consider the 
withdrawal of sufficient in-kind participation previously 
deposited by him in accordance with Rule . 1 109(h) of this 
Section to satisfy the goal(s) requirement- 
id) If the apparent low bidder fails to submit sufficient 
participation by eligible firms to satisfy the contract goals 
and upon determination by the Department based upon the 
information submitted that the apparent lowest responsive 
bidder failed to make sufficient reasonable efforts to meet 
the contract goals, the Board of Transportation may reject 
the bid. 

(e) In the event the Board of Transportation does not 
award the contract to the lowest responsive bidder, the 
Board of Transportation may award the contract to the next 
lowest responsive bidder that can satisfy the Department 
that the contract goals have been met or demonstrated a 
reasonable good faith effort to do so. 

History Note: Authority G.S. 136-28.4; 143B-348; 
Elf. April 30. 1997. 



1010 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



LIST OF RULES CODIFIED 



T 

A. he List of Rules Codified 


I is a listing of rules that were filed with OAH in the month indicated and have been 


entered into the Code. 






K^ey: 






Citation 


= 


Title, Chapter, Subchapter and Rule(s) 


AD 


= 


Adopt 


AM 


= 


Amend 


RP 


= 


Repeal 


With Chgs 


= 


Final text differs from proposed text 


Con- 


= 


Typographical errors or changes that requires no rulemaking 


Temp. 


= 


Rule was filed as a temporary rule 


Eff. Date 


— 


Date rule becomes effective 



NORTH CAROLINA ADMINISTRATIVE CODE 
AUGUST 96 



TITLE 


DEPARTMENT 


10 


Human Resources 


13 


Justice 


15A 


Environment, Health, 




and Natural Resources 



TITLE DEPARTMENT 

21 Occupational Licensing Boards 

37 - Nursing Home Administrators 

46 - Pharmacy 

54 - Practicing Psychologist 

58 - Real Estate Commission 



RULE CITATION 


AD 


AM 


RP 


WITH 
CHGS 


CORR 


TEMP 


EFFECTIVE 
DATE 


10 NCAC SOB .0202 




/ 








/ 


08/22/96 


.0404 




/ 








/ 


08/22/96 


.0409 




/ 








/ 


08/22/96 


13 NCAC 7F .0101 




/ 










09/01/96 


.0201 




/ 










09/01/96 


.0301 




/ 










09/01/96 


.0501 




/ 










09/01/96 


15A NCAC 2B .0303 




/ 




/ 






09/01/96 


.0308 




/ 




/ 






09/01/96 


,0310 




/ 




/ 






09/01/96 


.0315 - .0316 




/ 




/ 






09/01/96 


2C .0201 - .0210 




/ 




/ 






09/01/96 


.0215 


/ 












09/01/96 


.0216 


/ 






/ 






09/01/96 


2D .0501 










/ 






.0954 










/ 







11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



1011 



LIST OF RULES CODIFIED 









RLLE CITATION 


AD 


A.M 


RP 


WTTH 
CHGS 


CORK 


TEMP 


EFFECTIVE 
DATE 


.1205 










/ 






.1301 




/ 










09/01/96 


.1302 




/ 




/ 






09/01/96 


.1304 




/ 










09/01/96 


2Q .0202 










y 






.0204 










/ 






3M .0202 




/ 








/ 


09/01/96 


.0504 




/ 








/ 


09/01/96 


.0507 




/ 








/ 


09/01/96 


.0511 




/ 








/ 


09/01/96 


6E .0002 




/ 








/ 


09/23/96 


.0005 




/ 








/ 


09/23/96 


lOF .0105 




/ 










09/01/96 


ISA .3103 










/ 






.3106 




/ 




/ 






09/01/96 


21 


XCAC 37D .0202 




/ 








/ 


08/15/96 


37G .0102 




/ 








/ 


08/15/96 


37G .0102 










/ 






37H .0102 




/ 




/ 






09/03/96 


46 .2602 










/ 






54 .1610 


/ 






/ 






09/01/96 


.1703 




y 




/ 






09/01/96 


.2201 






/ 








09/01/96 


58E .0302 




/ 




/ 






09/01/96 



70i2 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Re\'iew Commission on Thursday. September 19, 1996 
gl 10:00 a.m. Anyone wishing to submit written comment on any rule before the Commission should submit those 
comments to the RRC staff, the agency, and the individual Commissioners by Monday. September 16. 1996. at 5:00 p.m. 
Specific instructions and addresses may be obtained from the Rules Re\'iew Commission at 919-733-2721. Anyone wishing 
to address the Commission should notify the RRC staff and the agency at least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Vemice B. Howard 

Teresa L. Smallwood 

Charles H. Henry 

Philip O. Redwine - Vice Chairman 



Appointed by House 

Jennie J. Hayman - Chairman 
Bill Graham 
Paul Powell 
Ed Shelton 



RULES REVIEW COMVflSSION MEETING DATES 



September 19, 1996 
October 17. 1996 



November 21, 1996 
December 19, 1996 



MEETING DATE: SEPTEMBER 19, 1996 



FOLLOW UP MATTERS: 



DHR Social Services Commission - 
Insurance - 

EHNR Environmental Management Commission - 



Revenue - 
Transportation 

Division of Highways - 

Public Transportation and Rail Division 
Psychology Board - 



10 NCAC 41F .0707, .0813, .0814 

11 NCAC 20 .0101, .0402, .0404. .0406, .0501, .0502, .0505, 
.0701 

15A NCAC 28 .0101. .0103, .0109, .0201, .0202, .0231 

(Hule .0231 was Noticed as Rule .0220) 

15A NCAC 2C .0211, .0213, .0214 

15A NCAC 2H .0501, .0502, .0503, ,0504, .0506, .0507 

17 NCAC IC .0504 

19A NCAC 2D .1102. .1108, .1111 
19A NCAC 6B .0412 
21 NCAC 54 .1901 



LOG OF FILINGS 
RULES SUBMirTED: JULY 23, 1996 THROUGH AUGUST 20, 1996 



AGENCY/DIVISION 



RULE NAME 



RULE 



ACTION 



DEHNR/COASTAL RESOURCES COMMISSION 

General Definitions 



15A NCAC 7H .0106 



Amend 



DEHNR/WILDLIFE RESOURCES COMMISSION 

Beaufort County 

Dare County 

Definitions and Procedures 

DEHNR/COMMISSION FOR HEALTH SERVICES 

Definitions 
General Provisions 



15A NCAC lOF 


.0303 


Amend 


15A NCAC lOF 


.0310 


Amend 


15A NCAC 101 


0001 


Repeal 


15A NCAC 13C 


.0301 


Adopt 


15A NCAC 13C 


.0302 


Adopt 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



1013 



RULES REVIEW COMMISSION 



Approval 


15A NCAC I3C .0303 


Adopt 


Minimum Qualifications 


15A NCAC 13C .0304 


Adopt 


Standards of Conduct 


15A NCAC 13C .0305 


Adopt 


Technical Standards 


15A NCAC 13C .0306 


Adopt 


Departmental Audits 


15A NCAC 13C .0307 


Adopt 


Clf^nup Levels 


15A NCAC 13C .0308 


Adopt 


TRANSPORTATION/DIVISION OF MOTOR VEHICLES 






Certificate 


19A NCAC 3E .0501 


Amend 


Purchase of For Hire License Tags 


19A NCAC 3E .0502 


Amend 


Interstate Carriers 


19ANCAC 3E .0510 


Amend 


Registration 


19ANCAC 3E .0511 


Amend 


Registration & Identification 


19A NCAC 3E .0512 


Amend 


Evidence of Liability Security 


19A NCAC 3E .0513 


Amend 


Issuance of Identification Stamps 


19A NCAC 3E .0514 


Amend 


Designation of Process Agent 


19A NCAC 3E .0515 


Amend 


Registration 


19ANCAC 3E .0518 


Amend 


Registration Required 


19A NCAC 3E .0519 


Amend 


Evidence of Liability Security 


19A NCAC 3E .0522 


Amend 


NC STATE BOARD OF DENTAL EXAMINERS 






Approved Education 


21 NCAC 16H .0104 


Amend 


Specific Permitted Functions 


21 NCAC 16H .0202 


Amend 


Permitted Functions 


21 NCAC 16H .0203 


Amend 


Record Content 


21 NCAC 16T .0001 


Adopt 


Transfer of Records 


21 NCAC 16T .0002 


Adopt 


Secretary-Treasurer 


21 NCAC 16U .0101 


Adopt 


Investigative Panel 


21 NCAC 16U .0102 


Adopt 


Processing 


21 NCAC 16U .0201 


Adopt 


Disposition 


21 NCAC 16U .0202 


Adopt 


Pre-hearing Conferences 


21 NCAC 16U .0203 


Adopt 


Settlement Conferences 


21 NCAC 16U .0204 


Adopt 



NC STATE BOARD OF EXAMINERS OF FEE-BASED PRACTICING PASTORAL COUNSELORS 

Approved Supervision 21 NCAC 45 .0801 Adopt 



NC BOARD FOR LICENSING OF SOIL SCIENTISTS 








Authority 


21 NCAC 69 


.0101 


Adopt 


Duties of Officers 


21 NCAC 69 


.0102 


Adopt 


Seal of the Board 


21 NCAC 69 


.0103 


Adopt 


Fees 


21 NCAC 69 


.0104 


Adopt 


Application Procedure 


21 NCAC 69 


.0201 


Adopt 


Expirations and Renewals 


21 NCAC 69 


.0202 


Adopt 


Introduction 


21 NCAC 69 


.0301 


Adopt 


Definitions 


21 NCAC 69 


.0302 


Adopt 


Requirements 


21 NCAC 69 


.0303 


Adopt 


Units 


21 NCAC 69 


.0304 


Adopt 


Determination of Credit 


21 NCAC 69 


.0305 


Adopt 


Recordkeeping 


21 NCAC 69 


.0306 


Adopt 


Exemptions 


21 NCAC 69 


.0307 


Adopt 


Reinstatement 


21 NCAC 69 


.0308 


Adopt 


Code 


21 NCAC 69 


.0401 


Adopt 


Rules of Conduct 


21 NCAC 69 


.0402 


Adopt 


Improper Practice 


21 NCAC 69 


.0501 


Adopt 



1014 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



RULES REVIEW COMMISSION 



RULES REVIEW OBJECTIONS 
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Environmental Management 

15A NCAC 2B .0101 - General Procedures RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 

15A NCAC 2B .0103 - Analytical Procedures RRC Objection 07/18/96 

No Response from Agency Obj. Cont 'd 08/15/96 

15A NCAC 2B .0109 - Waters Affected by Dredge and Fill Activities RRC Objection 07/18/96 

No Response from Agency Obj. Cont 'd 08/15/96 

15A NCAC 2B .0201 - Antidegradation Policy RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 

15A NCAC 2B .0202 - Definitions RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 

15 A NCAC 2B .0231 - Wetland Standards (Rule .0231 was Noticed as Rule .0220) RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 

15A NCAC 2C .0211 - Permits RRC Objection 08/15/96 

15 A NCAC 2C .0213 - Additional Criteria and Standards Applicable to Class 5 Wells RRC Objection 08/15/96 

15A NCAC 2C .0214 - Abandonment and Change-of-Status of Wells RRC Objection 08/15/96 

15A NCAC 2D .0501 - Compliance with Emission Control Standards RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15A NCAC 2D .0608 - Program Schedule RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15A NCAC 2D .0901 - Definitions RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15A NCAC 2D .0926 - Bulk Gasoline Plants RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15 A NCAC 2D .0934 - Coating of Miscellaneous Metal Parts and Products RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15A NCAC 2D .1109 - Case-by-Case Maximum Achievable Control Technology RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15A NCAC 2H .0501 - Purpose RRC Objection 07/18/96 

No Response from Agency Obj. Cont 'd 08/15/96 

15A NCAC 2H .0502 - Application RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 

15A NCAC 2H .0503 - Public Notice RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 

15A NCAC 2H .0504 - Hearing RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 

15A NCAC 2H .0506 - Criteria for Review of Applications RRC Objection 07/18/96 

No Response from Agency Obj. Cont 'd 08/15/96 

15A NCAC 2H .0507 - Issuance of Certification RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 



Commission for Health Services 

15A NCAC 18A .3106 - Abatement 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



07/18/96 
08/15/96 



Wildlife Resources Commission 

15A NCAC lOF .0104 - Certificate of Number 

Agency Revised Rule 
ISA NCAC lOF .0105 - Numbering Pattern 

Agency Revised Rule 
15 A NCAC lOF .0342 - Catawba County 

Rule Withdrawn by Agency 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



07/18/96 
08/15/96 
07/18/96 
08/15/96 

07/18/96 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



1015 



RULES REVIEW COMMISSION 



HUMAN RESOURCES 



Social Services Commission 

10 MCAC 41 F .0707 - Criminal Histories 

No Response from Agency 
10 NCAC 41F .0813 - Criminal History Checks 

No Response from Agency 
10 NCAC 41 F .0814 - Training Requirements 

No Response from Agency 



RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 



07/18/96 
08/15/96 
07/18/96 
08/15/96 
07/18/96 
08/15/96 



INSURANCE 

U NCAC 20 .0101 
11 NCAC 20 .0402 
11 NCAC 20 .0404 
11 NCAC 20 .0406 
11 NCAC 20 .0501 
11 NCAC 20 .0502 
11 NCAC 20 .0505 
11 NCAC 20 .0701 



■ Definitions 

■ Organization Structure 

■ Application 

■ Provider Files 

■ Program 

■ Structure 

■ Quality of Care Complaints 
- Accessibility of Providers 



RRC Objeaion 
RRC Objeaion 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



08/15/96 
08/15/96 
08/15/96 
08/15/96 
08/15/96 
08/15/96 
08/15/96 
08/15/96 



MEDICAL BOARD 

21 NCAC 32H .0702 - Requests 
No Response from Agency 
Rule Returned to Agency for Failure to Respond Pursuant to G.S. 150B-21.12 

EXAMINERS FOR NURSING HOME ADMINISTRATORS 

21 NCAC 37H .0102 - Continuing Education Programs of Study 
Agency Rexised Rule 



RRC Objection 
Obj. Cont'd 
Obj. Cont'd 



RRC Objection 
Obj. Removed 



04/18/96 
05/16/96 
06/20/96 



07/18/96 
08/15/96 



BOARD OF PHARMACY 

21 NCAC 46 .1601 - Pharmacy Permits 

Agency Revised Rule 
21 NCAC 46 .1607 - Out-of-State Pharmacies 

Rule Withdrawn by Agency 
21 NCAC 46 .1811 - Excessive Dispensing of Prescription Drugs 

Agency Revised Rule 
21 NCAC 46 .2502 - Responsibilities of Pharmacist-Manager 

Agency Revised Rule 
21 NCAC 46 .2504 - Patient Counseling 

Agency Revised Rule 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



06/20/96 
06/20/96 

06/20/96 
06/20/96 
06/20/96 
06/20/96 
06/20/96 
06/20/96 
06/20/96 



PSYCHOLOGY BOARD 

21 NCAC 54 1901 - Types 



RRC Objection 08/15/96 



REAL ESTATE COMMISSION 

21 NCAC 58A .0104 - Agency Agreements and Disclosure 

Agency Revised Rule 
21 NCAC 58A .0113 - Reporting Criminal Convictions 

Agency Revised Rule 
21 NCAC 58A .0502 - Business Entities 

Agency Revised Rule 
21 NCAC 58A .0610 - Subpoenas 

.Agency Re\'ised Rule 
21 NCAC 58E .0302 - Elective Course Component 

Agency Responded 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Removed 



06/20/96 
07/18/96 
06/20/96 
07/18/96 
06/20/96 
06/20/96 
06/20/96 
07/18/96 
06/20/96 
07/18/96 
08/15/96 



1016 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



RULES REVIEW COMMISSION 



REVENUE 

17 NCAC IC .0504 - EFT General Requirements 



RRC Objection 08/15/96 



TRANSPORTATION 



Division of Highways 

19A NCAC 2D .1102 - Definitions 

19A NCAC 2D .1108 - Goals 

19A NCAC 2D .1111 - Performance Related Replacement of Eligible Firms 



RRC Objection 
RRC Objection 
RRC Objection 



08/15/96 
08/15/96 
08/15/96 



Public Transportation and Rail Division 

19A NCAC 6B .0412 - Procurements 



RRC Objection 08/15/96 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



1017 



CONTESTED CASE DECISIONS 



1 his Section contains thefiill text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of 
the decisions listed in the index and not published are available upon request for a minimal charge by contacting the 
Office of Administrative Hearings, (919) 733-2698. 



i 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 
JUUAN MANN, III 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRA TIVE LA W JUDGES 



Brenda B. Becton 
Sammie Chess Jr. 
Beecher R. Gray 
Meg Scott Phipps 



Robert Roosevelt Reilly Jr. 
Dolores Nesnow Smith 
Thomas R. West 



DECISION 



AGENCY 



ADMINISTRATION 

Douglas J. Register v. Department of Administration 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Osama Arafat Sadar v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. James Eads Sprowles 
Cole Entertainment, Inc. v. Alcoholic Beverage Control Commission 
Fuad Saif Murshed v. Ale. Bev. Ctl. Comm. &. Durham Mem. Bapt. Ch. 
Alcoholic Beverage Control Commission v. Tremik, Inc. 
Alcoholic Beverage Control Commission v. Maria Virginia Tramontano 
Alcoholic Beverage Control Commission v. Huffman Oil Co., Inc. 
Pinakin P. Talate v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. Entrepreneur, Inc. 
Alcoholic Beverage Control Commission v. Zell, Inc. 
Alcoholic Beverage Control Commission v. Henry Franklin Gurganus 
Andrew Parker v. Alcoholic Beverage Control Commission 
Barraq Sahri Alquza v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Partnership T/A T & L Groceries 



CASE 
NUMBER 



96 DOA 0172 



Alcoholic Beverage Control Commission v. Cashion's Food Mart, Ini: 
Alcoholic Beverage Control Commission v. E.K.'s U. Inc. Carl E. Collins 95 
Bro Bee, Inc. v. Alcoholic Beverage Control Commission 95 

Alcoholic Beverage Control Commission v. Donald Ray Doak 95 

Alcoholic Beverage Control Commission v. Janice Lorraine Jeter 96 

Alcoholic Beverage Control Commission v. Well Informed, Inc. 96 

Alcoholic Beverage Control Commission v. Kubbard, Inc. 96 

Alcoholic Beverage Control Commission v. Stemmermans's, Inc. 96 

George Wright and Alice Ramsuer v. Alcoholic Beverage Control Comm. 96 
Alcoholic Beverage Control Commission v. Bayron Green 96 

Alcoholic Beverage Control Commission v. Robert Montgomery McKiiight96 
Gerald Audry Sellars v. Alcoholic Beverage Control Commission 96 

Alcoholic Beverage Control Commission v. Jacqueline Robin Anthony 96 
Alcoholic Beverage Control Commission v. Factory Night Club, Inc. 96 



ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 
ABC 



0721 

0883* 

0917 

0922 

0925 

1200 

1251 

1329 

1363 

1366 

1389 

1402 

1424 

1443 

1444 

1458 

1480 

1488 

0013 

0016 

0017 

0018 

0058 

0097 

0135 

0160 

0184 

0226 



AL.T 



Reilly 



Gray 

Gray 

West 

Chess 

Morrison 

West 

West 

West 

Reilly 

West 

West 

Phipps 

Phipps 

West 

Gray 

Chess 

West 

West 

Reilly 

Chess 

Reilly 

Chess 

BcA^ton 

Becton 

Phipps 

Becton 

Phipps 

Phipps 



DATE OF 
DECISION 



08/16/96 



07/09/96 
07/10/96 
08/21/96 
04/24/96 
03/25/96 
04/23/96 
04/03/96 
04/10/96 
05/02/96 
06/17/96 
04/01/96 
03/27/96 
04/03/96 
03/26/96 
03/13/96 
08/12/96 
04/15/96 
03/29/96 
04/26/96 
05/28/96 
05/20/96 
05/28/96 
04/16/96 
08/23/96 
05/09/96 
06/25/96 
05/09/96 
08/02/96 



PUBLISHED 
REGISTER CITATION 



i 



11:12 NCR 1027 



11:03 NCR 166 



11:08 NCR 564 



i 



1018 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



CONTESTED CASE DECISIONS 



AGENCY 



Alcoholic Beverage Control Commission v. C.N.H. Enterprises, Inc. 
Alcoholic Beverage Control Commission v. Millicent J. Green 
Ghassan Hasan Issa v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. Abdelhakeem Muraweh Saleh 
Alcoholic Beverage Control Commission v. Triangle Drive-In 
Alcoholic Beverage Control Commission v. Beroth Oil Company 
Alcoholic Beverage Control Commission v. Beroth Oil Company 
Alcoholic Beverage Control Commission v. Beroth Oil Company 
Alcoholic Beverage Control Commission v. Clifton Franklin Smith 
Dilthra Smith Patton v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. James Eads Sprowles 
Alcoholic Beverage Control Commission v. Albert S. Carter 
Alcoholic Beverage Control Comm. v. Centergrove Entertainment Ent- 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


96 ABC 0232 


Becton 


07/09/96 


96 ABC 0234 


Nesnow Smith 


06/13/96 


96 ABC 0256 


Morrison 


05/23/96 


96 ABC 0381 


Chess 


08/27/96 


96 ABC 0443 


Reilly 


06/11/96 


96 ABC 0448 


Morrison 


08/30/96 


96 ABC 0449 


Morrison 


08/30/96 


96 ABC 0450 


Morrison 


08/30/96 


96 ABC 0474 


Reilly 


08/12/96 


96 ABC 0505 


Morrison 


08/06/96 


96 ABC 0526*' 


Gray 


07/10/96 


96 ABC 0534 


Morrison 


08/05/96 


96 ABC 0583 


Reilly 


08/12/96 



PUBLISHED DECISION 
REGISTER CITATION 



COMMISSION FOR AUCTIONEERS 



John W. Foster v. Auctioneer Licensing Board 
CRIME CONTROL AND PUBLIC SAFETY 



96 CFA 0201 



Phipps 



05/06/96 



Roland Lee Kelly, Jr. v. United Family Services, Victim Assistance/Crime 95 

Victims Compensation Comm. 
Robert F. Bronsdon v. Crime Victims Compensation Commission 
Helen B. Hunter-Reid v. Crime Victims Compensation Commission 
Deborah C. Passarelli v. Crime Victims Compensation Commission 
Kenneth Saunders v. Victims Compensation Commission 
Franklin McCoy Jones v. Crime Victims Compensation Commission 
Ruby H. Ford v. Crime Victims Compensation Commission 
Manuel Cervantes v. Victims Compensation Fund 
Sheila Carol Blake v. Victims Compensation Commission 
James T. Mungo v. Victims Compensation Commission 
William Theodore Frazier v. Crime Victims Compensation Commission 
Donna Williams v. Crime Victims Compensation Commission 
Anthony P. Dawkins v. Crime Victims Compensation Commission 
Shirley M. King v. Crime Victims Compensation 
Mark Matthews for Child Victim v. Crime Victims Compensation Comm. 96 



95 CPS 0568 


Morrison 




05/29/96 






95 CPS 1216 


Chess 




05/28/96 






95 CPS 1336 


Nesnow S 


[nith 


03/29/96 


11:02 NCR 


93 


95 CPS 1399 


Reilly 




07/18/96 


11:09 NCR 


814 


95 CPS 1445 


Chess 




03/26/96 






96 CPS 0056 


Nesnow S 


•nith 


07/03/96 






96 CPS 0110 


Reilly 




04/18/96 






96 CPS 0118 


Chess 




03/19/96 






96 CPS 0280 


West 




07/10/96 






96 CPS 0333 


Reilly 




07/09/96 






96 CPS 0435 


Chess 




08/22/96 






96 CPS 0493 


Morrison 




06/13/96 






96 CPS 0716 


Reilly 




08/16/96 






96 CPS 0802 


West 




08/08/96 






96 CPS 0832 


Becton 




08/20/96 







ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 



Cribble &. Assoc. & Four Seasons Car Wash v. EHNR 

Wilton Evans v. Environment, Health. &. Natural Resources 

David Martin Shelton v. Rockingham County Dept/Public Health. EHNR 

Kinston Urological Associates. P. A. v. N.C. Cancer Program 

Kinston Urological Associates, P. A. v. N.C. Cancer Program 

Elsie & Tony Cecchini v. Environment, Health, & Natural Resources 

United Organics Corporation v. Environment, Health, & Natural Res. 

Gerald Mac Clamrock v. Environment, Health, & Natural Resources 

John Milazzo v. Environment, Health, & Natural Resources 



95 EHR 0576 


Gray 


04/25/96 






95 EHR 0843 


Reilly 


07/17/96 






95 EHR 0941 


West 


05/01/96 






95 EHR 1198*^ 


Nesnow Smith 


03/27/96 


11:02 NCR 


97 


95 EHR 1199*- 


Nesnow Smith 


03/27/96 


11:02 NCR 


97 


95 EHR 1240 


Reilly 


04/22/96 






96 EHR 0064 


Nesnow Smith 


07/01/96 






96 EHR 0168 


Phipps 


05/06/96 






96 EHR 0644 


Reilly 


08/13/96 







Coastal Resources 



Martin W. Synger v. Division of Coastal Management 95 EHR 1006 

J. E. Smith Construction Co. v. Division of Coastal Management 96 EHR 0074 

Theodore D. Barris v. Town of Long Beach, NC & Coastal Mgmt. EHNR 96 EHR 0277 



Chess 


05/13/96 


Nesnow Smith 


02/23/96 


West 


05/09/96 



Environmental Health 



Forest Gate Motel v. Environment, Health, and Natural Resources 96 EHR 0076 West 

Paradise Ridge Home Owners by Anne Norbum v. EHNR, Env. Health 96 EHR 0162 Phipps 



06/17/96 
05/06/96 



Environmental Management 



Herman E. Smith v. Division of Environmental Management 
Conover Lumber Co., Inc. v. EHNR, Division of Environmental Mgmt 
Jack West d/b/a Jack We-st Tree Service v. Environmental Mgmt. Comm. 
The Smithfield Packing Co., Inc., v. EHNR, Environmental Mgmt. 
and 
Citizens for Clean Industry. Inc. and Bladen Environment 



95 EHR 0962 


West 


04/30/96 


95 EHR 1081 


Reilly 


04/12/96 


95 EHR 1421 


Morrison 


04/08/96 


95 EHR 1474 


West 


07/03/96 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



1019 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



Clover M Farms, Inc. v. EH^fR, Division of Environmental Management 96 EHR 0405 
Providence Glen Associates v. Environmental Management, EHNR 96 EHR 0648 



AL.I 



Becton 
Becton 



DATE OF 
DECISION 



06/10/96 
08/12/96 



PUBLISHED DECISION 
REGISTER CITATION 



i 



Land Resources 

K&G Properties, Inc. v. EHNR, Division of Land Resources 
Marine Fisheries 



95 EHR 1078 Nesnow Smith 



03/25/96 



Robert I. Swinson, Sr. v. EHNR, Health & Nat. Res., Marine Fisheries 95 EHR 0320 Chess 
Grayden L. Fulcher and Michael Styron, Sr. v. Div. of Marine Fisheries 96 EHR 0003 Reilly 
Johnny R. Stolesberry v. Marine Fisheries Commission 96 EHR 0072 Gray 



03/29/96 
03/06/96 
08/19/96 



11:03 NCR 168 
11:11 NCR 955 



SuUJ Waste Management 

R Donald Phillips v. EHNR, Solid Waste Management Division 
R. Donald Phillips v. EHNR, Solid Waste Management Division 



95 EHR 1190*^ 

96 EHR 0554*^ 



Gray 
Gray 



05/22/96 
05/22/96 



WIC Program 

Lazellc Marks v. EHNR, Division of Maternal and Child Health 

Hani Sader v. Nutrition Services, Div/Matemal & Child Health, EHNR 

Bob's Quick Mart, Bobby D. Braswell v. Env., Health, & Natural Res. 

Larry E. Mis v. USDA-Food/Cons Svc, Cory Menees-WlC Prog., EHNR 96 EHR 0164 

Naser H. Hammad v. Environment, Health, &. Natural Resources 

Khaled M. Alzer v. Environment, Health, &. Natural Resources 



95 EHR 0870 


West 


03/27/96 


96 EHR 0054 


West 


05/22/96 


96 EHR 0091 


Nesnow Smith 


04/02/96 


96 EHR 0164 


Phipps 


03/19/96 


96 EHR 0632 


Reilly 


07/09/96 


96 EHR 0721 


Reilly 


07/30/96 



EQUAL EMPLOYMENT OPPORTUT>«TIES 

Carl D. Davis v. Department of Correction 



91 EEC 1101 Nesnow Smith 



05/06/96 



HUMAN RESOURCES 

Cassandra M. Deshazo v. Christine E. Carroll, Chf Chid Abuse/Neg. Sec. 95 DHR 1410 
Medicus Robinson v. Department of Human Resources 96 DHR 0167 

Division of Child Development 

Molly Fallin v. Department of Human Resources 
Molly Fallin v. Department of Human Resources 
Mary T. Hill v. DHR, Division of Child Development 
lola Roberson v. DHR, Division of Child Development 
Zannie M. Allen v. DHR, Division of Child Development 

Division of Facility Services 

Eloise Brown v. Dept. of Human Resources, Division of Facility Services 95 DHR 1002 
Harry Martin Bastian v. DHR, Division of Facility Services 96 DHR 0287 

Certificate of Need Section 

Nash Hospitals, Inc. v. DHR, Div/Facility Services, Cert, of Need Sect. 
Pitt Cty Mem. Hospital, Inc. v. DHR, Div/Facility Sries, Cert/Need Sect. 

Group Care Licensure Section 

Alex L. McCall v. DHR, Div/Facility Svcs, Group Care Licensure Sec. 
DHR, Facility Services, Group Care Licensure Sect. v. Petrova Evans 

Medical Facilities Licensure Section 



Phipps 
Nesnow Smith 



95 DHR 1176*^ 
95 DHR 1177*^ 



95 DHR 1456 

96 DHR 0544 



Phipps 
West 



Phipps 
Phipps 



Nesnow Smith 
Phipps 



03/28/96 
04/12/96 



94 DHR 0872*^ 


Gray 


05/15/96 


95 DHR 1013*' 


Gray 


05/15/96 


95 DHR 1192 


Phipps 


03/27/96 


95 DHR 1244 


Gray 


05/16/96 


96 DHR 0304 


Gray 


08/15/96 



03/07/96 
08/21/96 



05/23/96 
05/23/96 



03/26/96 
08/21/96 



{ 



11:06 NCR 
11:06 NCR 



389 
389 



Deborah Reddick v. Department of Human Resources 

Stacey Yvette Franklin v. Facility Services, Medical Facilities Lie. Sec. 

Division of Medical Assistance 

Judy Malcuit, Re Melissa Malcuit v. DHR, Div. of Medical Assistance 



96 DHR 0240 
96 DHR 0358 



96 DHR 0129 



Reilly 
Morrison 



Gray 



06/18/96 
05/16/96 



06/12/96 



i 



1020 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Division of Social Services 

Crystean Fields v. Department of Human Resources 95 DHR 1001 

Rozena Chambllss v. Department of Human Resources 95 DHR 1044 

Addie & Major Short v. Department of Human Resources 95 DHR 1063 

Mr. and Mrs. Jessie Stevenson v. DHR, Division of Social Services 95 DHR 1072 
William G. Fisher v. DHR. Div. of Social Services, Prog Integrity Branch 95 DHR 1234 

Vema F. Nunn v. Department of Human Resources 95 DHR 1330 

Nancy Hooker. Helen Tyndall v. Department of Human Resources 96 DHR 0155 



Child Support Enforcement Section 

Donald E. Rideout Jr. v. Department of Human Resources 
Christopher F. Roakes v. Department of Human Resources 
Claude Eure Jr. v. Department of Human Resources 
Richard R. Fox, Sr. v. Department of Human Resources 
Joselito D. Pilar v. Department of Human Resources 
David Lee Grady v. Department of Human Resources 
Patrick Orlando Crump v. Department of Human Resources 
Peter Robert Kovolsky v. Department of Human Resources 
Tony Lee Zapata v. Department of Human Resources 
Lawrence Dow Dean v. Department of Human Resources 
Carl E. Coffey v. Department of Human Resources 
Keith Dewayne Senters v. Department of Human Resources 
Lonnie Dawes v. Department of Human Resources 
Mickey Turner v. Department of Human Resources 
James Joseph Gallagher v. Department of Human Resources 
James Thomas McRae v. Department of Human Resources 
Vincent E. Koehler v. Department of Human Resources 
David J. Moseley v. Department of Human Resources 
Derrick L. Conyers v. Department of Human Resources 
Charles Edward Smith v. Department of Human Resources 
Kevin Vereen v. Department of Human Resources 
James Curtis Witwer v. Department of Human Resources 
Thometl Bowden v. Department of Human Resources 
Henry S. Sada v. Department of Human Resources 
Charles F. Moore v. Department of Human Resources 
Daniel Leslie Baker v. Department of Human Resources 
Kenneth L. Lindsey v. Department of Human Resources 
John L. Pike v. Department of Human Resources 
Wm. R. Evans v. Department of Human Resources 
Rory J. Curry v. Department of Human Resources 
Lorin A. Brown v. Department of Human Resources 
Marcus Anthony Butts v. Department of Human Resources 
Cynthia Pinder v. Department of Human Resources 
Rhonnie J. Williams v. Department of Human Resources 
Ramon Domenech v. Department of Human Resources 
Lennard J. Watson v. Department of Human Resources 
Dennis L. McNeill v. Department of Human Resources 
Tony A. Rogers v. Department of Human Resources 
Rick E. Atkins v. Department of Human Resources 
Timothy A. Ratley (Jeanes) v. Department of Human Resources 
Richard E. Reader v. Department of Human Resources 
Wendel McDonald v. Department of Human Resources 
Wilbur Dewayne Bault v. Department of Human Resources 
Reginald B. Bratton Sr. v. Department of Human Resources 
James C. Smith v. Department of Human Resources 
Ronald D. Johnson v. Department of Human Resources 
Johnny Leary v. Department of Human Resources 
Jimmy Strickland v. Department of Human Resources 
John W. Scott v. Department of Human Resources 
Calvin S. Austin v. Department of Human Resources 
Derek Henslee v. Department of Human Resources 
Donald L. Carr, Jr. v. Department of Human Resources 
Norman Waycaster v. Department of Human Resources 
Lorenzo Wilson v. Department of Human Resources 
Mark Kevin Bums v. Department of Human Resources 
Cyril Lloyd Payne v. Department of Human Resources 



Gray 


07/05/96 


Nesnow Smith 


03/12/96 


Morrison 


03/19/96 


Phipps 


03/15/96 


Morrison 


03/19/96 


Gray 


04/11/96 


Gray 


04/26/96 



95 CSE 0952 


Reilly 


04/18/96 


95 CSE 


1131 


Becton 


05/03/96 


95 CSE 


1155 


Phipps 


06/12/96 


95 CSE 


1169 


Becton 


03/19/96 


95 CSE 


1180 


Chess 


03/01/96 


95 CSE 


1218 


Morrison 


03/26/96 


95 CSE 1221 


Nesnow Smith 


03/05/96 


95 CSE 1230 


Becton 


03/11/96 


95 CSE 


1266 


Gray 


05/02/96 


95 CSE 


1267 


Morrison 


03/29/96 


95 CSE 


1270 


Nesnow Smith 


03/15/96 


95 CSE 


1273 


Phipps 


04/01/96 


95 CSE 


1274 


Nesnow Smith 


06/12/96 


95 CSE 


1278 


Nesnow Smith 


03/14/96 


95 CSE 


1280 


Chess 


03/19/96 


95 CSE 


1296 


Chess 


03/15/96 


95 CSE 


1301 


Phipps 


05/09/96 


95 CSE 


1304 


Chess 


03/29/96 


95 CSE 


1308 


Reilly 


03/13/96 


95 CSE 


1309 


West 


03/07/96 


95 CSE 


1315 


Phipps 


05/06/96 


95 CSE 


1331 


Becton 


03/26/96 


95 CSE 


1345 


Morrison 


03/07/96 


95 CSE 


1367 


Nesnow Smith 


03/21/96 


95 CSE 


1369 


Chess 


03/27/96 


95 CSE 


1373 


Morrison 


03/12/96 


95 CSE 


1375 


West 


06/24/96 


95 CSE 


1376 


Nesnow Smith 


03/21/96 


95 CSE 


1377 


Becton 


03/11/96 


95 CSE 


1380 


Mann 


03/15/96 


95 CSE 


1382 


Reilly 


04/18/96 


95 CSE 


1405 


Nesnow Smith 


03/27/96 


95 CSE 


1406 


Becton 


03/11/96 


95 CSE 


1407 


Chess 


05/06/96 


95 CSE 


1408 


Phipps 


03/11/96 


95 CSE 


1414 


Mann 


08/23/96 


95 CSE 1435 


Becton 


03/13/96 


95 CSE 


1436 


Chess 


05/16/96 


95 CSE 


1437 


Phipps 


04/01/96 


95 CSE 


1465 


Morrison 


03/26/96 


95 CSE 


1469 


Nesnow Smith 


04/29/96 


95 CSE 


1470 


Becton 


07/29/96 


95 CSE 


1475 


West 


03/13/96 


96 CSE 0002 


Mann 


08/23/96 


96 CSE 0034 


Gray 


05/10/96 


96 CSE 0084 


Nesnow Smith 


03/27/96 


96 CSE 0085 


Becton 


05/03/96 


96 CSE 0119 


Chess 


07/08/96 


96 CSE 0130 


Mann 


03/15/96 


96 CSE 0140 


Phipps 


05/17/96 


96 CSE 0188 


Reilly 


05/17/96 


96 CSE 0200 


West 


05/30/96 


96 CSE 0245 


Becton 


05/16/96 


96 CSE 0257 


Phipps 


05/06/96 


96 CSE 0271 


Morrison 


06/24/96 


96 CSE 0272 


Reilly 


05/31/96 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



1021 



CONTESTED CASE DECISIONS 



AGENCY 



Charles H. Johnson v. Department of Human Resources 

Willie James Myers v. Department of Human Resources 

Christopher F. Byrne v. Department of Human Resources 

Richard Palnall Burch v. Department of Human Resources 

Charles Gillispie v. Department of Human Resources 

Teresa Reynolds v. Department of Human Resources 

Thomell Bowden v. Department of Human Resources 

Kenneth Edward Bums v. Department of Human Resources 

Carl R. Ritler v. Department of Human Resources 

William Charles Roric v. Department of Human Resources 

Leon Gibson v. Department of Human Resources 

Dioni Delvalle. 13 v. Department of Human Resources 

Gerald Roger Beachum Jr. v. Department of Human Resources 

Anderson I. Wardlow v, Department of Human Resources 

Daniel J. Carter v. Department of Human Resources 

Kelvin Tarlton v. Department of Human Resources 

Steven Craig Mooney v. Department of Human Resources 

John L. Cherry- Jr. v. Department of Human Resources 

Arthur Jemerson v. Department of Human Resources 

Michael S. Covington v. Department of Human Resources 

Gar>- Steele v. Department of Human Resources 

Terry Sealey v. Department of Human Resources 

Jackie L. Kopczick v. Department of Human Resources 

Virginia McDowell Ramsey v. Department of Human Resources 

D. Wayne Gray v. Department of Human Resources 

Claude R. Anderson v. Department of Human Resources 

Alan Kendell Locklcar v. Department of Human Resources 

Douglas F. McBryde v. Department of Human Resources 

Thomas White v. Department of Human Resources 

James Trevor Emerson v. Department of Human Resources 

Leon McNair v. Department of Human Resources 

John William White v. Department of Human Resources 

Hazel L. Walker v. Department of Human Resources 

Tayloria Y. Manns v. Department of Human Resources 

Carl S. McNair v. Department of Human Resources 

David Agurs v. Department of Human Resources 

King Sanders Jr. v. Department of Human Resources 

Sandra Kay Carpenter v. Department of Human Resources 

Christopher Clyde Barrino Jr. v. Department of Human Resources 

Clinton Sutton v. Department of Human Resources 

Dave L. James v. Department of Human Resources 

Jonathan Bernard Copper v. Department of Human Resources 

Franklin D. Deese v. Department of Human Resources 

Renee G. Arriola v. Department of Human Resources 

Melinda S. Tunner v. Department of Human Resources 

Jeanne G. Bishop v. Department of Human Resources 

Rebecca Beaver v. Department of Human Resources 

Vivian B. \V'Lite v. Department of Human Resources 

Marv' R. Mahon v. Department of Human Resources 

Mary R. Mahon v. Department of Human Resources 

Laura Hcidorf v. Department of Human Resources 

Lois Floyd Barber v. Department of Human Resources 



CASE 




DATE OF 


NUMBER 


M4 


DECISION 


96 CSE 0295 


West 


07/15/96 


96 CSE 0299 


Beclon 


07/19/96 


96 CSE 0336 


Chess 


06/26/96 


96 CSE 0339 


Phipps 


06/27/96 


96 CSE 0365 


Mann 


07/23/96 


96 CSE 0369 


Gray 


07/23/96 


96 CSE 0370 


Morrison 


05/17/96 


96 CSE 0379 


Reilly 


07/18/96 


96 CSE 0380 


West 


05/08/96 


96 CSE 0388 


Nesnow Smith 


08/01/96 


96 CSE 0389 


Becton 


07/02/96 


96 CSE 0407 


Chess 


07/17/96 


96 CSE 0411 


Phipps 


06/24/96 


96 CSE 0412 


Mann 


08/05/96 


96 CSE 0417 


Gt^y 


06/24/96 


96 CSE 0424 


Morrison 


05/29/96 


96 CSE 0425 


Reilly 


07/08/96 


96 CSE 0426 


West 


06/24/96 


96 CSE 0427 


Nesnow Smith 


08/01/96 


96 CSE 0428 


Be^:ton 


08/02/96 


96 CSE 0429 


Chess 


08/26/96 


96 CSE 0430 


Phipps 


05/29/96 


96 CSE 0431 


Mann 


06/05/96 


96 CSE 0464 


Gray 


08/02/96 


96 CSE 0465 


Morrison 


08/02/96 


96 CSE 0502 


Reilly 


07/22/96 


96 CSE 0503 


West 


05/30/96 


96 CSE 0518 


Becton 


08/19/96 


96 CSE 0519 


Chess 


08/29/96 


96 CSE 0545 


Phipps 


07/25/96 


96 CSE 0557 


Morrison 


08/08/96 


96 CSE 0558 


Reilly 


08/14/96 


96 CSE 0559 


West 


06/24/96 


96 CSE 0564 


Nesnow Smith 


08/15/96 


96 CSE 0568 


Beeton 


06/24/96 


96 CSE 0580 


Chess 


06/13/96 


96 CSE 0581 


Phipps 


08/22/96 


96 CSE 0595 


Gray 


08/29/96 


96 CSE 0603 


Morrison 


08/26/96 


96 CSE 0629 


Reilly 


08/29/96 


96 CSE 0638 


West 


07/15/96 


96 CSE 0642 


Phipps 


09/03/96 


96 CSE 0690 


Mann 


07/23/96 


96 CSE 0790 


Becton 


08/14/96 


95 DCS 0921 


Morrison 


05/09/96 


95 DCS 0958 


West 


04/04/96 


95 DCS 1114 


Reilly 


04/26/96 


95 DCS 1115 


Phipps 


06/04/96 


95 DCS 1137*' 


Chess 


06/11/96 


95 DCS 1142** 


Chess 


06/11/96 


96 DCS 0065 


Reilly 


03/22/96 


96 DCS 0176 


Gray 


07/30/96 



PUBLISHED DECISION 
REGISTER CITATION 



{ 



INSURANCE 



Carol M. Hall v. Teachers & State Employees Comp. Major Medical Plan 95 INS 1141 Phipps 04/01/96 

Arthur Wayne Dempsey v. Department of Insurance 95 INS 1255 Nesnow Smith 04/22/96 

Deborah B. Beavers V. Teachers & St. Emp. Comp. Major Med. Plan 95 INS 1411 Nesnow Smith 05/10/96 

Nadia A. Hakim v. Department of Insurance 95 INS 1422 Nesnow Smith 03/26/96 

Mary Alice Casey v. Department of Insurance 96 INS 0148 Reilly 08/14/96 



11:05 NCR 308 



JUSTICE 



Wendy Atwood v. Department of Justice (Company Police Program) 96 DOJ 0111 Chess 

Deborah K. Torrance v. Company Police Program Administrator 96 DOJ 0363 Becton 



08/07/96 
08/14/96 



i 



1022 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Education and Training Standards Division 

Freddie Levem Thompson v. Criml. Justice Ed. & Training Stds. Comm. 
Shane Douglas Crawford v. Sheriffs' Ed. &. Training Stds. Comm. 
Charles Henry Daniels v. Criml. Justice Ed. & Training Stds. Comm. 
Valerie Maxine Brewington v. Criml. Justice Ed. & Training Stds. Comm 
Patricia Josephine Bonanno v. Sheriffs' Ed. & Training Stds. Comm. 
Douglas Allan Stuart v. Sheriffs' Ed. & Training Stds. Comm. 
Rick M. Evoy v. Criminal Justice Ed. &. Training Stds. Comm. 
Windell Daniels v. Criminal Justice Ed. & Training Stds. Comm. 
Gregory Lee Daughtridge v. Sheriffs' Ed. & Training Stds. Comm. 
Sherrie Ann Gainey v. Sheriffs' Ed. & Training Stds. Comm. 
Stuart Hugh Rogers v. Sheriffs' Ed. & Training Stds. Comm. 
Brian Thomas Craven v. Sheriffs' Ed. & Training Stds. Comm. 
Larry D. Weston v. Sheriffs' Ed. & Training Stds. Comm. 
Carlton Gerald v. Criminal Justice Ed. & Training Stds. Comm. 
Ken Montie Oxendine v. Criminal Justice Ed. & Training Stds. Comm. 
James Leon Hunt v. Criminal Justice Ed. & Training Stds. Comm. 
David Kent Knight v. Sheriffs' Ed. & Training Stds. Comm. 
Demetrius Amez Brown v. Criminal Justice Ed. & Training Stds. Comm. 
Claude F. Nunnery v. Sheriffs' Ed. & Training Stds. Comm. 
John Charles Maloney v. Sheriffs' Ed. & Training Stds. Comm. 
Jimmie L. Cooper v. Sheriffs' Ed. & Training Stds. Comm. 
Jerry Glenn Monette v. Sheriffs' Ed. & Training Stds. Comm. 
Carlton Gerald v. Criminal Justice Ed. & Training Stds. Comm. 
Warren Scott Nail v. Criminal Justice Ed. & Training Stds. Comm. 
George Willie Gilliam v. Sheriffs' Ed. & Training Stds. Comm. 

Private Protective Services Board 



95 DOJ 0731 


Chess 


02/29/96 




95 DOJ 0943 


Reilly 


05/17/96 




95 DOJ 1070 


West 


06/12/96 




95 DOJ 1 129 


Nesnow Smith 


04/12/96 




95 DOJ 1152 


Chess 


03/25/96 




95 DOJ 1189 


Morrison 


06/06/96 




95 DOJ 1235 


Chess 


03/25/96 




95 DOJ 1320 


Gray 


07/24/96 




96 DOJ 0027 


Reilly 


03/19/96 




96 DOJ 0028 


Becton 


08/09/96 




96 DOJ 0029 


West 


06/18/96 




96 DOJ 0036 


Gray 


07/09/96 




96 DOJ 0037 


Nesnow Smith 


06/12/96 




96 DOJ 0068 


Gray 


03/26/96 




96 DOJ 0071 


West 


03/28/96 




96 DOJ 0077 


Phipps 


07/25/96 




96 DOJ 0115 


West 


03/28/96 




96 DOJ 0138 


Becton 


08/09/96 




96 DOJ 0305 


Gray 


08/28/96 




96 DOJ 0306 


Nesnow Smith 


08/16/96 




96 DOJ 0352 


Morrison 


07/12/96 




96 DOJ 0420 


Morrison 


07/26/96 11:10 NCR 874 


96 DOJ 0432 


Becton 


08/07/96 




96 DOJ 0576 


Becton 


08/07/96 




96 DOJ 0656 


Morrison 


08/02/96 





Timothy A. Hawkins v. Private Protective Services Board 
William F. Combs v. Private Protective Services Board 
Randy C. Hoyle v. Private Protective Services Board 
Robert A. Gibson v. Private Protective Services Board 
Jimmy D. Matthews v. Private Protective Services Board 
Johnnie Lee King v. Private Protective Services Board 
Thomas R. Harris v. Private Protective Services Board 
Private Protective Services Board v. Henry E. Byrd, Jr. 
Private Protective Services Board v. Charles T. Mathis 



95 DOJ 1419 


West 




04/12/96 


96 DOJ 0022 


West 




03/22/96 


96 DOJ 0024 


Nesnow 


Smith 


06/10/96 


96 DOJ 0386 


Nesnow 


Smith 


07/03/96 


96 DOJ 0676 


Reilly 




07/11/96 


96 DOJ 0677 


Reilly 




07/11/96 


96 DOJ 0761 


Reilly 




07/11/96 


96 DOJ 0796 


Mann 




08/19/96 


96 DOJ 0798 


Mann 




08/27/96 



MEDICAL BOARD 



Medical Board v. Martin A. Hatcher, M.D. 



92 BME 0510 



Gray 



06/28/96 



11:08 NCR 555 



PUBLIC INSTRUCTION 

Lavera K. Suggs v. NC Board of Education 

J.T.S. & T.S., Parents of E. M.S. v. Chapel Hill-Carrboro City Schl. Sys. 

L.O. V. Charlotte-Mecklenburg Board of Education 

Candy ce Ewanda Newsome v. Hertford County Board of Education 

Blaise Malveau v, Cumberland County Board of Education 

Blaise Malveau v. Cumberland County Board of Education 

John Barlow v. Watauga County Board of Education 

John L. Archer v. Department of Public Instruction 

Pamela F. Cummings v. Department of Public Instruction 

STATE PERSONNEL 



95 EDC 0383 


Nesnow Smith 


03/13/96 


95 EDC 1194 


Mann 




04/12/96 


96 EDC 0285 


Mann 




05/31/96 


96 EDC 0344 


Chess 




05/15/96 


96 EDC 0613 


Chess 




08/14/96 


96 EDC 0614 


Chess 




08/14/96 


96 EDC 0623 


Reilly 




07/24/96 


96 EDC 0678 


Nesnow S 


mith 


08/02/96 


96 EDC 0742 


Nesnow S 


[nith 


08/16/96 



11:01 NCR 50 



Department of Administration 

Jimmie A. Hughes, Jr. v. Department of Administration 96 OSP 0008 

Jonathan L. Fann v. Department of Administration, Admin. Personnel 96 OSP 0042 

Carlton Gerald v. Stale Capitol Police. Department of Administration 96 OSP 0116 

Administrative Office of the Court 

Ethel R. Tyson v. NC Judicial Dept., Administrative Office of the Court 96 OSP 0080 



Reilly 


07/23/96 


Gray 


05/24/96 


Gray 


04/25/96 



Nesnow Smith 



03/15/96 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



1023 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Appalachian State University 

Janice S. Walton v. Appalachian St Univcreity, Claude Cooper, Bill Ragan96 OSP 0062 
Janice S. Carroll v. Appalachian St University, Claude Cooper, Bill Ragan96 OSP 0063 



Caldwell County 

Blake C. Pace v. Caldwell County 

NC Central University 

Francina Y. Tate v. Chancellor Julius L. Chambers, NC Central Univ. 

Central North Carolina School for the Deaf 

Felicia S. Milton v. Central North Carolina School for the Deaf 

Department of Correction 



96 OSP 0047 



95 OSP 1432 



95 OSP 1241 



West 
West 



Morrison 



Nesnow Smith 



Haydee Cravcr v. Department of Correction, Pender Correctional Inst. 95 OSP 1046 

Gregory Allen Jones v. Department of Correction, Supt. Bonnie Boyette 95 OSP 1290 
Calvia L. Hill v. Department of Correction, McCain Correctional Hospital 95 OSP 1460 

Alisha Louise Staley v. Randolph Correctional Center 96 OSP 0092 

Brenda Propst v. Foothills Correctional Institution 96 OSP 0199 

Delon D. Solomon v. Department of Correction 96 OSP 0258 

Alisha Louise Slaley v. Randolph Correctional Center 96 OSP 0261 

Haydee C. Craver v. Department of Correction, Christopher Phillips 96 OSP 0348 

Dwight Taylor, Mike Estcp, Jackie Boone, Robert Pitman, Jeffery Clark 96 OSP 0372*' 

V. Department of Correction 

Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark 96 OSP 0373*' 

V. Department of Correction 

Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark 96 OSP 0374*' 

V. Department of Correction 

Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark 96 OSP 0375*' 

V. Department of Correction 

Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark 96 OSP 0376*' 

V. Department of Correction 
Calvia L. Hill v. Department of Correction, McCain Correctional Hospital 96 OSP 0397 

Tony R. Broffman v. Department of Correction 96 OSP 0625 

Timothy L. Willis v. Caswell Correctional Center 96 OSP 0715 

Department of Crime Control and Public Safety 

Jerry Lee Fields v. State Highway Patrol 94 OSP 1174*'° 

Gene Wells v. Crime Control & Public Safety, State Highway Patrol 95 OSP 0249*' 

Jerry Lee Fields v. State Highway Patrol 95 OSP 0836*'° 

Gene Wells v. Crime Control & Public Safety, State Highway Patrol 95 OSP 1050*' 

Durham County Health Department 

L^ila D. Stockton V. Durham County Health Department 95 OSP 0176 

East Carolina University 

Bcia E. Kai^aly, Ph.D. v. ECU Bd. of Trustees, Ch. Richard R. Eakin 96 OSP 0150 

Employment Security Commission 

Gene S. Baker v. Gov. James B. Hunt, Jr.. Ann Q. Duncan, Chairman, 93 OSP 0707 

Employment Security Commission 

William Herbert Allen v. Employment Security Commission 94 OSP 1688 

Patricia Gary v. Employment Security Commission 95 OSP 0793 

Tonderlier Lynch v. Emp. Security Comm., Austin Quality Foods, Inc. 96 OSP 0275 

Department of Environment, Health, and Natural Resources 

Roberta Ann "Robin" Hood v. Environment, Health, & Natural Resources 95 OSP 0035 



Chess 



Gray 

Phipps 

Gray 

Gray 

Morrison 

West 

Morrison 

Phipps 

Nesnow Smith 

Nesnow Smith 

Nesnow Smith 

Nesnow Smith 

Nesnow Smith 

Gray 
Becton 

West 



Gray 

Nesnow Smith 
Gray 
Nesnow Smith 



West 



Chess 



03/13/96 
03/07/96 



04/01/96 



04/22/96 



05/17/96 



03/12/96 
05/14/96 
05/17/96 
06/03/96 
04/09/96 
07/02/96 
08/05/96 
05/15/96 
07/05/96 

07/05/96 

07/05/96 

07/05/96 

07/05/96 

08/15/96 
08/29/96 
07/30/96 



08/05/96 
07/23/96 
08/05/96 
07/23/96 



07/02/96 



05/08/96 



Becton 


05/16/96 


11:05 NCR 300 


West 


06/11/96 




Chess 


05/14/96 




Chess 


05/21/96 





Reilly 



04/09/96 



1024 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Fayetteville State University 

William C. Neal v. Fayetteville State University 95 OSP 0392 

Guilford County Area Mental Health, Developmental Disabilities and Substance Abuse 
Stuart Klatte v. Guilford Cty Area MH/DD/SAS, St. Per Comm, OSP 95 OSP 1179 

Department of Human Resources 

Ophelia Webb v. Edard R. Inman, Dir. Alamance Cty DSS, Alamance 96 OSP 0112 

Cty DSS, Alamance County, and DHR 
Gail Marie Rodgers Lincoln v. DHR, DMH/DD/SAS-Cherry Hosp., 

Cherry Hospital 
Johnny Earl Young v. Unit Head Director of Food & Nutrition 
Mary A. Boogaerts v. Cherry Hospital, Goldsboro, NC 
Kelvin Parter v. Dorothea Dix Hospital 

Johnny Earl Young v. Unit Head Director of Food cS: Nutrition 
Johnny Earl Young v. Unit Head Director of Food & Nutrition 

Buncombe Count)' Department of Social Services 

Kathy Davis v. Buncombe County Department of Social Services 

Casv,'eU Center 



95 OSP 1487 



Ramona C. Jenkins v. Department of Human Resources, Caswell Center 89 OSP 0411 
Ramona C. Jenkins v. Department of Human Resources, Caswell Center 91 OSP 0522 
Franklin D. Sutton v. Department of Human Resources, Caswell Center 94 OSP 0766 

Durham County Department of Social Services 
Jan E. Smith v. Durham County Department of Social Services 95 OSP 1121 

Halifax County Department of Social Services 
Clairbel Thomas v. Halifax County DSS & Director, Halifax County DSS 95 OSP 0905 

Division of Medical Assistance 
Harold Wiggins v. Division of Medical Assistance 95 OSP 1482 

O 'Berry Center 
Samuel Geddie v. O'Berry Center 96 OSP 0414 

Rockingham County Departmenl of Social Services 
Lorrerta Lawson v. Rockingham County DSS 96 OSP 0471 

Wake County Department of Social Services 
Phylis Gilbert v. Wake County Department of Social Services 95 OSP 1238 

Department of Insurance 

Larry W. Creech v. Department of Insurance 95 OSP 0631 

Department of Labor 

Kevin P. Kolbe, Sr. v. Department of Labor 95 OSP 0968 

New Hanover County Board of Health 
Tabandeh Zand v. New Hanover County Board of Health 95 OSP 1035 



Nesnow Smith 



Nesnow Smith 



West 



Becton 
Becton 
Nesnow Smith 



Morrison 



West 



West 



Morrison 



West 



Phi 



pps 



Reilly 



Morrison 



Nesnow Smith 



04/22/96 



07/19/96 



96 OSP 0112 


Gray 


03/13/96 


96 OSP 0159 


Chess 


06/17/96 


96 OSP 0217 


Reilly 


08/13/96 


96 OSP 0269 


Becton 


05/29/96 


96 OSP 0294 


Chess 


08/07/96 


96 OSP 0543 


Reilly 


07/09/96 


96 OSP 0590 


Reilly 


07/09/96 



08/09/96 



03/26/96 
03/26/96 
03/21/96 



05/24/96 



05/29/96 



06/11/96 



06/13/96 



06/13/96 



06/27/96 



06/06/96 



03/14/96 



03/01/96 



11:10 NCR 865 



11:02 NCR 89 



11:06 NCR 395 



11:07 NCR 434 



11:01 NCR 58 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



1025 



COS'TESTED CASE DECISIONS 



AGENCY 

Saiulhill Community College 

Earl Lcvon Womack v. Sandhill Community College Bd. of Tmstees 

Office of the Slate Controller 

Angela M. Terry- v. Office of the State Controller 

S'orth Carolina Stale University 

Veraell Mitchell v. North Carolina Cooperati%'e Extension 

Department of Transportation 

Pearlie M. Simuel-Johnson v. Department of Transportation 

Dorothy J. Grays v. Div. of Motor Vehicles, Dept. of Transportation 

Pearlie M. Simuel-Johnson v. Department of Transportation 

Lisa Ann Lee v. Department of Transportation 

Melvin Duncan v. Department of Transportation 

Greg Brown v. Department of Transportation 

Jesse Wayne Castle v. Stale Highway Maint., Guess Rd.. Durham, NC 

Archie Brooks v. W. F. Rosser, Department of Transportation 

Jessie L. Allen ct al. v. DMV Enforcement Section 

R.L. Singleton v. Department of Transportation 

Tri-County Mental Health Complex 

Deborah Heil v. Tri-Counly Mental Health Complex 

University of \orth Carolina 

Pamela B. Edwards v. University of North Carolina at Chapel Hill 

Keith R. Cameron v. University of North Carolina at Chapel Hill 

Jerel H. Bonner v. School of Nursing UNC at Chapel Hill 

Bela E. Karvaly, Ph.D. v. UNC Bd. of Gov., Pres. CD. Spangler. Jr. 

Carl E. Whigham v. UNC Hospitals at Chapel Hill 

J. Scott Spears v. Ralph Pederson and UNC-C 

STATE TREASURER 

Donald B. Durham v. Teachers' & St. Employees Retirement Sys. 

UNTVERSITY OF NORTH CAROLINA 

Sylvia Jeffries v. University of NC Hospitals al Chapel Hill 

James E. Boudwin v. University of NC Hospitals at Chapel Hill 

Rufus T. Moore Jr. v. UNC Hospital 

Marcia Spruill v. UNC Hospitals - Patient Accounts 

Charles E. Houlk v. UNC Hospitals 



CASE 
NUMBER 



96 OSP 0573 



96 OSP 04CG 



96 OSP 0132 



ALi 



Phipps 



Becion 



Gray 



95 OSP 1100 



92 DST 1066 



Ncsnow Smith 



95 OSP 0842 


Chess 


95 OSP 1060 


Morrison 


96 OSP 0026 


Gray 


96 OSP 0151 


Chess 


96 OSP 0248 


Chess 


96 OSP 0548 


Chess 



Chess 



DATE OF 
DECISION 



07/25/96 



08/07/96 



05/10/96 



PUBLISHED DECISION 
REGISTER CITATION 



94 OSP 0589-' 


Gray 


03/01/96 


94 OSP 1044 


ReiUy 


04/12/96 


95 OSP 0837*' 


Gray 


03/01/96 


95 OSP 1099 


Reilly 


07/31/96 


95 OSP 1462 


Morrison 


03/08/96 


96 OSP 0048 


Reilly 


05/02/96 


96 OSP 0087 


Gra> 


04/15/96 


96 OSP 0239 


Nesnow Smith 


05/17/96 


96 OSP 0408 


Becton 


08/12/96 


96 OSP 0683 


Beeton 


08/12/96 



03/22/96 



06/28/96 
06/24/96 
03/12/96 
05/08/96 
06/11/96 
08/30/96 



07/17/96 



96 UNC 0067 


Gray 


04/16/96 


96 UNC 0343 


Chess 


07/22/96 


96 UNC 0470 


Reilly 


08/12/96 


96 UNC 0500 


Be^-ton 


07/10/96 


96 UNC 0588 


Morrison 


08/09/96 



i 



11;03 NCR 173 



11:01 NCR 61 



11:09 NCR 810 



* Consolidated cases. 



i 



1026 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF MECKLENBURG 



IN THE OFTICE OF 

ADMINISTRATIVE HEARINGS 

95 ABC 0917 



COLE ENTERTAINMENT INC., 
T/A SUGAR SHACK 
Petitioner, 



N.C. ABC COMMISSION 
Respondent. 



RECOMMENDED DECISION 



This matter was heard before Administrative Law Judge Thomas R. West on Apnl 16, 17, 18, 19, 23, 24, 25, May 6 
and 7, 1996, m Charlotte, North Carolma. 

APPEARANCES 

Petitioner: Guthrie, Davis, Henderson & Staton by Denrus L, Guthrie and Kimberly A. Robertson 

Charlotte, N.C. 

Respondent: Melissa C. Owens, Assistant Counsel Glenn B Lassiter, Jr., Deputy General Counsel 

ISSUE PRESENTED 



Did the ABC Commission err when it failed to issue a permanent license to the Petitioner on the basis that the 
business cannot be considered suitable to hold ABC permits m that noise, litter, traffic and violence associated with the 
operation of the Sugar Shack are detnmental to the neighborhood? 

RECITATION OF THE PARTIES' STIPULATIONS 

The followmg Stipulations are contamed m the parties' Pre-Tnal Order: 

A. It is stipulated that Petitioner's application to the ABC Comrmssion for a permanent ABC permit was 
properly completed and accompamed by proper documentation 

B. It is stipulated that all parties are properly before the Office of Administrative Hearings and that the Office 
of Administrative Hearmgs has jurisdiction over the parties. 

C. It is stipulated that all parties have been correctly designated, and there is no question as to misjoinder or 
nonjoinder of parties. 

D. Cole Entertainment, Inc. owns the busmess trading as the Sugar Shack located at 4220 East Independence 
Boulevard, Charlotte, North Carolma. 

E. It IS stipulated that Mr. Mark Olin Jacobs has been properly designated as representative for the Petitioner 
by its attorney. (See Motion filed pursuant to Rule 6 1 5 and served on Apnl 1 .) 

F. In addition to the other Stipulations contained herein, the parties hereto stipulate and agree with respect to 
the following undisputed facts: 



March 6, 1995. 



1. Cole Entertainment, Inc., T/A Sugar Shack applied for permanent ABC permits on or about 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



1027 



CONTESTED CASE DECISIONS 



2. The Petitioner's application for permanent ABC permits was rejected on July 11,1 995 on the 

basis that "This business cannot be considered suitable to hold ABC permits in that the noise, litter, traffic and violence 
associated with the operation of this business are detrimental to the neighborhood. G.S. §18B-901(c)." 



application. 



club. 



3. The Petitioner gave timely notice of its appeal from the ABC Commission's rejection of its 

4. The property upon which Sugar Shack is located is properly zoned for use as a mghtclub/private 



5. The building in which Sugar Shack is located complies with all applicable building codes and 
requirements of the State of North Carolma and the County of Mecklenburg. (See North Carolina Alcoholic Beverage 
Control Commission Inspection Report For Buildmg and Zoning Compliance, and Respondent's Answers to Petitioner's First 
Request for Admissions, Section A. Number 2). 

6. As of the date of this Recommended Decision, the Sugar Shack has complied with all applicable 
fire codes and requirements of the State of North Carolma and the County of Mecklenburg. (See North Carolma Alcoholic 
Beverage Control Commission Inspection Report For Building and Zonmg Compliance, and Respondent's Answers to 
Petitioner's First Request for Admissions, Section A, Number 3). 

7. The parkmg lots designated for patrons of the Sugar Shack are well lighted. (See Respondent's 
Answers to Petitioner's First Request for Admissions, Section A, Number 4). 

8. There are two workmg restrooms available for patrons at the Sugar Shack. (See Respondent's 
Answers to Petitioner's First Request for Admissions, Section A, Number 7). 

9. As of the date of this Recommended Decision, Mr Mark 01m Jacobs has not been tned or 
convicted, pled guilt\- to, forfeited bond or admitted responsibility for any cnmmal or traffic offenses, withm the last ten (10) 
years for which the potential pumshment was greater than 60 days confinement ( See Respondent's Answers to Petitioner's 
First Request for Admissions, Section A, Number 8, and Certified Criminal Record Report for Mark Olin Jacobs). 

10 As of the date of this Recommended Decision, Ms. Deanna Mane Rothgeb has not been tried or 

con\icted, pled guilb.- to, forfeited bond or admitted responsibility for any cmrunal or trafl'ic oflenses, withm the last ten ( 10~) 
vears for which the potential pumshment was greater than 60 days confinement. (See Respondent's Answers to Petitioner's 
First Request for Admissions, Section A, Number 9, and Certified Cnminal Record Report for Ms Deanna Mane Rothgeb). 

11. As of the date of this Recommended Decision, Mr. Mark 01m Jacobs, Ms. Deanna Marie 
Rothgeb and Cole Entertainment. Inc.. T/A Sugar Shack are suitable applicants for a permanent ABC license. 

12. The following list of permittees ha\e held permits at 4120 and/or 4220 East Independence 
Boule\ard, Charlotte. North Carolma. within the last fifteen (15) years; 

a. Johnny B. Goode's 

b. Connections 

c. Silver Screen Cafe 

d. Zipper's Entertainment Complex 

e. Rocky's Cowboys 

f. 4220 East Sports Deli ( see Respondent's Answers to Petitioner's First Request For 
Admissions, Section A. Number 10) 

g. 2001. 

13. According to ABC records, the ABC Commission issued permanent ABC permits for the on- 
premise sale of malt be\erages, fortrfied w me, unfortified wine and mixed be\'erages to Tommy Knockers located at 4416 
East Independence Boulevard on May 31, 1995. According to ABC records, the ABC Commission issued permanent ABC 
permits to Vintage on the Boule\'ard located at 4220 East Independence BouIe\'ard for the on-premise sale of malt 
be\erages, fortified wme and unfortified wme on November 10, 1994 and for mixed be\'erages on June 16, 1994. This 
busmess is located m the same building as the Sugar Shack. 



1028 NORTH CAROLINA REGISTER September 16, 1996 11:12 



CONTESTED CASE DECISIONS 



14. The Sugar Shack is not located within 50 feet of a church ( See Respondent's Answers to 
Petitioner's First Request for Admissions, Section A, Number 1 5). 

15. The Sugar Shack is not located within 50 feet of a school. (See Respondent's Answers to 
Petitioner's First Request for Admissions, Section A, Number 16). 

16. The Sugar Shack has never received a notice of violation from the North Carolma ABC 
Commission. (See Respondent's Answers to Petitioner's First Request for Admissions, Section A, Number 21). 

17. No objection to the issuance of ABC perrmts to Respondent was received pursuant to N.C.G.S. 
§ 1 8B-90 1 (b) from the local governing body of the City of Charlotte. 

18. The parties stipulate to the genuineness of the followmg documents: 

a. The North Carolina ABC Commission inspections report for building code compliance 
relating to the Sugar Shack ( see Respondent's Answers to Petitioner's First Request for Admissions, Section B, Number 1). 

b. The North Carolina ABC Commission mspection for zoning compliance relatmg to the 
Sugar Shack (see Respondent's Answers to Petitioner's First Request for Admissions, Section B, Number 2). 

c. The North Carolina ABC Commission mvestigative report prepared by Alcohol Law 
Enforcement Agent B. P. Lail dated March 1 1, 1995 (see Respondent's Answers to Petitioner's Fnst Request for Adimssions, 
Section B, Number 3). 

19. The parties stipulate to the genuineness of the North Carolina ABC Commission file concermng 
Cole Entertainment, Inc., T/A Sugar Shack and if admissible shall be allowed as evidence. 

FINDINGS OF FACT 

1. Burden of Proof and Miscellaneous Preliminary Findings . 

a. Petitioner has the burden of proof in this case to show that Sugar Shack is not detrimental to the 
neighborhood in terms of noise, litter, traffic and violence. 

b. The relevant time period includes March 6, 1 995 until the present. 

c. The Respondent presented no convincing evidence that the operation of Sugar Shack has any detrimental 
impact upon the Amity Gardens neighborhood, Sims Plaza or the B-2 zone with regard to increased or excessive litter and/or 
traffic. Accordmgly, these two alleged bases upon which the Respondent relied in denymg Sugar Shack a permanent ABC 
license are unsubstantiated. 

d. The Respondent presented evidence of the number of calls for service to the Charlotte-Mecklenburg Police 
Department which hst Sugar Shack as the location of the problem. This data was subjected to extensive cross-exammation. 
The actual number of calls for service as presented by Respondent is unreliable for reasons including: 

1. repeatedly Sugar Shack was listed when another busmess or address was the source of the 

complamt, 

ii. a large number of calls were never substantiated by the police officers responding; 

iii. a number of calls were false; 

iv. a large number of the calls were in no way related to the operation of Sugar Shack; and 

V. many duplicate calls were included. 

2. Location and Surroundings . 



11:12 NORTH CAROLINA REGISTER September 16, 1996 1029 



CONTESTED CASE DECISIONS 



a. Sugar Shack is located at 4220 East Independence Boulevard in Charlotte, North Carolina. 

b. 80,000 vehicles per day travel past the 4200 block of East Independence Boulevard in Charlotte, North 
Carolina. 

c. The Sugar Shack is located in a B-2 (General Business) distnct. 

d According to the Charlotte City Code §9.801, the purpose of the B-2 general business district is "to create 

and protect business areas for the retailing of merchandise, the provision of professional and business services, and, in some 
cases, wholesalmg services to serve a large population. This distnct will generally be located adjacent to major thorough- 
fares, because establishments within this distnct are more likely to serA,e a larger trade area than establishments withm the B- 
1 district [Neighborhood Business District]." 

e. Sugar Shack's patrons are predominantly African-American. 

3. The Amitv Gardens Neighborhood . 

a. There are approximately 260 homes in the Amity Gardens neighborhood. The majonty of residents are 
Caucasian. 

b. The Sugar Shack abuts the Amity Gardens neighborhood and is separated from it by a 7 foot cham link 
fence with slats in it. 

c. Several Amitv Gardens residents testified m this administrative heanng. All of the residents live in close 
proximity to the fence which separates the Amity Gardens neighborhood from the Sugar Shack Some of the residents are 
greatlv disturbed by the noise in the parking lots, gunfire, and the need for a high level of armed secunt>' so close to their 
home. Some of the residents are not bothered. 

d There is no evidence on record in this case indicating that any resident of the Amitv' Gardens neighbor- 

hood has been a victim of any crime directly associated with the operation of Sugar Shack. 

e. There is no evidence on record in this case that any resident of the Amity Gardens neighborhood has heard 

of any cnme m the Amity Gardens neighborhood directly associated with the operation of Sugar Shack. 

f All of the Amity Gardens neighborhood witnesses who testified for and against the Sugar Shack testified 

that the Amity Gardens neighborhood is a safe neighborhood. 

g. There is no evidence which suggests that property values in the Amity Gardens neighborhood have been 

affected by the operation of Sugar Shack. 

h The credible evidence on record indicates that property values in the Amity Gardens neighborhood have 

increased since March 6, 1995, as testified to by Chet Show, a licensed real estate broker who has his otfice in the Armty 
Gardens neighborhood. 

i. CuiTcntly the vast majontv' of homes for sale in the Amity Gardens neighborhood sell within 45 days. 

j. One home in the AmitN' Gardens neighborhood, adjacent to Sugar Shack, sold for more than the "asking 

price" a short time before the last week of this heanng. 

k. No dulv authonzed or appointed spokesperson testified on behalf of the Amity Gardens neighborhood. 

4. Secuntv at Sugar Shack . 

a. At all times relevant to this case Sugar Shack employed a large number of secunty guards on the interior 
and exterior of Sugar Shack. 

b. Currently, outside secunty is provided by Boss Secunty, a professional secunty agency whose employees 



1030 NORTH CAROLINA REGISTER September 16, 1996 11:12 



CONTESTED CASE DECISIONS 



are well qualified in the field of nightclub secunt\ 

c. The inside secunrv personnel at Sugar Shack include Jimmy Buffett's personal body guard, a guard who 
previously guarded the United States Air Force One aiiplane which transports the President, and another guard who retired 
from the Amiy Security Agency. Jim Munden, a sound technician who has provided sound sei-vice for many nightclubs, 
testified that Sugar Shack security is exemplary. 

d. Sugar Shack is the onlv tenant of Sims Plaza which provides outside security, despite repeated suggestions 
by the Charlotte Police Department that Vintage on the Boulevard, an adjacent nightclub, employ outside secunty 

e. Boss Security uses barriers, radio headsets and llashlights to control the patrons and noise levels in the 
Sugar Shack lot. Boss Security officers are also armed with pistols or shotguns. 

5. Sims Plaza . 

a. Sugar Shack is located in Sims Plaza. 

b. Other businesses such as Vintage on the Boulevard and Silver Screen Cafe in Sims Plaza are open for 
business during much of the time that Sugar Shack is open on weekend evenings. 

c. Nightclubs have operated on the site at which the Sugar Shack is currently located at Sims Plaza for the 
past 1 5 years. 

d. Vintage on the Boulevard is located in the 4200 block of East Independence Boulevard. Charlotte, North 
Carolina. Vintage on the Boulevard is located in the same building complex as Sugar Shack, 

e Vintage on the Boulevard received its ABC license a few months before the Sugar Shack received its 

temporarv' ABC license. 

f Sugar Shack controls the parking lot immediately in front of its front door extending to Independence 

Boulevard and forward to the chain link fence between the Olive Garden and Sugar Shack. This lot was referred to as the 
"west lot" during the hearing. 

g. Sugar Shack shares the parking lot behind its building, between the Sugar Shack's back wall and the 7 foot 

fence dividing the B-2 distnct from the Amity Gardens neighborhood, with the other tenants of Sims Plaza including but not 
limited to Vintage on the Boule\ ard (hereinafter referred to as "the back parking lot") 

h. Vintage on the Boulevard is open on Monday nights, for Monday night football. 

i. Sugar Shack provides security for the west lot. 

j. The west lot and the back lot aie swept and cleaned each morning after the Sugar Shack has been open. 

k No busmess tenant in either the B-2 zone or Sims Plaza testified that they had any employee or customer 

who reported being a victim of either crime or violence directly associated with the operation of Sugar Shack. The manage- 
ment of The Olive Garden has fenced off its parking lot from the west lot to keep patrons of the Sugar Shack from using its 
lot. 

6. Relevant Statutory Lanauage and Definitions 

a. The statute which governs issuance of permanent ABC permits is N.C.G.S. §18B-901. 

b. The following terms are not defined in N.C.G.S. §186-901; "suitable;" "neighborhood;" "detrimental;" 
"violence." 

c. Respondent claims that Sugar Shack is not a suitable location for a permanent ABC license based upon 
"noise, litter, traffic and violence " 



11:12 NORTH CAROLINA REGISTER September 16, 1996 1031 



CONTESTED CASE DECISIONS 



d. A neighborhood is "a group of residential units joined by a common geographic plan, circumscribed by 
natural or artificial bamers and united by the common purpose of family living " 

e. "Violence" is "the actual or threatened exertion of force, directed toward the person of another which 
endangers the health and safety of the other " 

f The factors the Commission shall consider in issumg a permanent ABC license are as follows: 

1. Before issuing a permit, the Commission shall be satisfied that the applicant is a suitable person 
to hold an ABC permit (see preceding recitation of Stipulations, 9, 10 and 1 1 ), 

2. Before issuing a permit, the Commission shall be satisfied that the location is a suitable location 
to hold a permit (see preceding recitation of Stipulations, 1 6, 1 8(c) and 1 9). 

g. In order to be a suitable place, the establishment shall comply with applicable building and fire codes. 

(See preceding recitation of Stipulations, 5, 6, 18(a)). 

h Other factors the Commission shall consider in determming whether the applicant and the business 

location are suitable include: 

1 . Reputation, character and criminal record of the applicant (see preceding recitation of Stipula- 
tions, 9, 10 and 11); 

2. The number of places already holding ABC permits withm the neighborhood (see preceding 
recitation of Stipulations, 12(a)-(g), 13): 

3. Parking facilities and tralfic conditions in the neighborhood (see preceding recitation of 
Stipulations, 4, 12(a)-(g), 13 and 18(b)): 

4. Kinds of busmesses already m the neighborhood (see preceding recitation of Stipulations, 4, 
12(a)-(g), 13 and 18(b)), 

5. Whether the establishment is located within 50 feet of a church or public school or church school 
(see precedmg recitation of Stipulations, 14, 15, 18(a)), 

6. Zoning laws (see preceding recitation of Stipulations, 4, 1 8(b)); 

7. The recommendations of the local govemmg body (see preceding recitation of Stipulations, 17); 

8. Any other evidence that would tend to show whether the applicant would comply with ABC laws 
and whether operation of this business at the location would be detnmental to the neighborhood (see preceding recitation of 
Stipulations). 

7 Noise . 

a. On numerous mghts when the Sugar Shack has been open for business, residents of the Amity Gardens 
neighborhood who testified dunng Respondent's case have been disturbed and often awakened by the activities occumng m 
the back and west parking lots of the Sugar Shack. These activities mclude loud music emanating from car stereos, people 
yelling, screeching tires and gunfire. 

b. The activities mentioned in the above Finding #7a occurred substantially more on Friday and Saturday 
nights when the Sugar Shack has been open than on weeknights when the Sugar Shack has not been open The noise occurs 
when the Sugar Shack opens and when it closes after 2:00 a.m. 

c. The activities mentioned in the above Fmduig #7a occurred substantially more when the Sugar Shack was 
closing and its patrons were disbursing into the west and back parking lots. 



1032 NORTH CAROLINA REGISTER September 16, 1996 11:12 



CONTESTED CASE DECISIONS 



d. On many nights when the Sugar Shack has been open for business, patrons of the Sugar Shack "cruise" or 
drive their vehicles around and through the west and back parking lots and play their car stereos loudly 

e. On many mghts when the Sugar Shack has been open for business, patrons of the Sugar Shack have 
parked their cars and loitered m the back and west parking lots, played their car stereos loudly and yelled loudly 

f On many nights when the club has been open for business, the Charlotte-Mecklenburg Police Department 

has written numerous noise citations to patrons of the Sugar Shack for violating the City's noise ordinance by playing their 
vehicle stereos too loudly. 

g. Around 7:00 a.m. on many Saturday and Sunday mornings after Sugar Shack has been open, some Amity 

Gardens residents have been awakened by the loud noise produced as a commercial sweeper cleans the back and west 
parking lots. 

h. The noise caused by the sweeper occurred primarily on Saturday and Sunday mornings when the club has 

been open and not on weekday mornings when the club has not been open. 

i. The noise activity mentioned m Findings #7a-h can be heard mside the homes of some residents in the 

Amity Gardens neighborhood. 

j. On many nights when the Sugar Shack has been open for business, residents of the Amity Gardens 

neighborhood have been awakened by gunfire commg from the direction of the west parking lot. 

k. There is no measurable noise coming from the interior of the Sugar Shack building during its hours of 

operation. 

1. There is no detrimental impact on the other tenants of the B-2 busmess zone or Sims Plaza as a result of 

the noise associated with the operation of Sugar Shack. 

m. The Sugar Shack's outside secunt^' has a policy which they adhere to with regard to noise m the Sugar 

Shack parking lot when a car enters the lot with loud music playing, its driver is immediately approached by a secunty 
guard and told to turn down the music, and if the music is turned up again the person dnving the car is instructed to remove 
it from the lot. 

n. Noise coming from the back lot is not assignable exclusively to Sugar Shack patrons 

8. Traffic . 

a. Sugar Shack has no impact on vehicular traffic in the Amity Gardens neighborhood. 

b. Sugar Shack has no detrimental impact on vehicular traffic in the B-2 zone or Sims Plaza except for a 
period of time of less than fifteen minutes when the club closes. 

c. Sugar Shack has no detrimental impact on traffic on Independence Boulevard except for a period of time 
of less than fifteen minutes when the club closes. 

9. Litter . 

a. No witness testified to having obsei-ved any litter m the Amity Gardens neighborhood which could be 
associated with the operation of Sugar Shack. 

b. People walking through the parking lot and the neighborhood dunng the day (when Sugar Shack is closed) 
throw beer bottles in Amity Gardens' yards. 

c. The operation of Sugar Shack has no detrimental impact on the amount of litter in the Amity' Gardens 
neighborhood. 



11:12 NORTH CAROLINA REGISTER September 16, 1996 1033 



CONTESTED CASE DECISIONS 



10. Violence . 

a. Between March 4, 1995 and January 28, 1996, the Charlotte-Mecklenburg Police received many calls for 
service from the mimediate area around the Sugar Shack. 

b. The types of complaints in these calls ranged from assaults, assaults with a deadly weapon, man with a 
gun, shots fired, fight or other disturbance, public afiray, stolen vehicle, frespass, and damage to property. 

c. Approximately 75% of the calls occurred on a Fnday or Saturday night when the Sugar Shack was open 
for busmess. Approamately 25% occurred on a weeknight when the Sugar Shack was not open for business. 

d. On many mghts when the club has been open and a call for service was received by the police, the reason 
for the call, such as loud music or gunshots fired, has abated by the time the police amved on the scene to respond to the 
call. 

e. On April 16, 1995, Early T. Fairly was shot by patrons while inside the Sugar Shack. Mr. Fairly subse- 
quentlv died from the gunshot wound he received that night. 

f The weapon used m the shooting was brought mto the club by a pafron sittmg on the weapon while in a 

wheelchair. 

g. The club's mside secunty did not search the patron m the wheelchair by removing him from the chair. 

h. On April 16, 1995, Sugar Shack had secunty workmg mside the club and at the entrance to the club. The 

secunt) procedures required all pafrons to undergo pat-down searches and pass a metal detector test before entering the club. 

i. As of the heanng date, these mside secunty procedures were still bemg used. However, now even people 

m wheelchairs and their chairs are searched. 

11. Noise and Violence . 

a. On April 16, 1995, the club had 2-3 security guards pafrolling the west parking lot area every night the 

club was open. 



club: 



Some time after the April 16, 1995 incident. Sugar Shack took the following steps to tighten security at the 



1 . Boss Security was hired to provide outside security in the west parking lot area; 



2. The number of outside secunty guards patrolling the west parking lot mcreased to 6-8 guards 
every night the club was open; 

3. All of the Boss Secunty guards wore uniforms, earned large black flashlights and were armed 
with some type of firearm. One guard earned a pistol-gnp shotgun, while another guard earned a full-stock shotgun. This 
same secuntv was m efiect as of the date of the heanng; 

4. Temporary mobile barricades of different types were placed at the club's entrance, thus dividing 
the west and back parking lots. 

c. The barricades have significantly reduced cruising between the two lots. Boss Secunty is a professional 
company which has attempted to control the cruismg, yellmg, loitering and playmg loud music, and violence in the west 
parking lot. 

d. Boss Secunty has reduced the cruismg, yelling, loitering, playmg of loud music and \'iolence. 

e. Each security guard who testified for the Petitioner admitted that the loud music, veiling, loitering, fights 
and \iolence contmue, and that Boss Secunty constantly has to remind patrons m the west parking lots to either turn their 



1034 NORTH CAROLINA REGISTER September 16, 1996 11:12 



CONTESTED CASE DECISIONS 



stereos down or ofi". 

f. On numerous occasions, either Sugar Shack's inside security or Boss Security' has called the police for 
assistance with matters such as fights, disturbances, shootmgs or crowd control. 

g. On January 28, 1996, a fight between patrons of the club began while they were inside the establishment. 
After the inside secuntv' escorted the patrons outside the club, the patrons continued their fight in the west parking lot by 
firing guns at each other, even though the club's outside security was patrolling the west parkmg lot. 

h- Sugar Shack has made conscious, consistent efforts to control noise and violence. However, manv Amity 

Gardens residents ha\'e continued to be significantly disturbed by noise and violence occumng m the west and back parking 
lots. 

i. The Sugar Shack has not and did not, as of the date of the heanng, pro\ide any security m the back 

parking lot. 

CONCLUSIONS OF LAW 

1 . The operation of Sugar Shack does not create a detriment to the B-2 business zone or the other tenants of 
Sims Plaza. 

2. The operation of Sugar Shack does not significantly mcrease the amount of litter in the Amity Gardens 
neighborhood. 

3. There is no credible evidence on record indicating that the operation of Sugar Shack significantly mcreases 
the amount of litter m the Suns Plaza parkmg lot except for the early mommg hours of Sattirday and Sunday. 

4. The litter which does exist durmg the early mommg hours of Saturday and Sunday is cleaned promptly 
and causes no significant detriment to the other tenants of Sims Plaza. 

5. There is no credible evidence on record indicatmg that noise directly associated with the operation of 
Sugar Shack significantly impacts the other tenants of Sims Plaza 

6. There is no credible evidence on record indicating that any cnme has occurred m tlie Amity Gardens 
neighborhood as a direct or indirect result of the operation of Sugar Shack. 

7. There is no credible evidence on record indicating that the operation of Sugar Shack has resulted in any 
crime directed toward any of the tenants of Sims Plaza, their employees or patrons. 

8. There is no credible evidence on record mdicating that the operation of Sugar Shack significantly increases 
the amount of traffic in the Amity Gardens neighborhood. 

9. There is no credible evidence on record indicating that the operation of Sugar Shack significantly mcreases 
the amount of traffic on Independence Boulevard, except for approximately fifteen minutes after 2:00 a.m. on Saturday and 
Sunday mommgs. 

10. The noise in the back and west parking lots occurs in the early morning hours and disturbs residents of the 
Amity Gardens neighborhood while they are sleepmg or trying to sleep Sleeping is a major life activity, particularly 
between midnight and 7:00 a.m It is detnmental to the residents of the Amity Gardens neighborhood when thev cannot 
sleep m their homes. 

1 1 . The violence in the west parkmg lot is so close and of such a nature as to create a reasonable belief in the 
residents of the Amity Gardens neighborhood that there is an exertion of force and threatened exertion of force directed 
toward the neighborhood, which endangers their health and safety. Specifically, it is reasonable for residents to fear that 
they or a member of their family will be struck bv a bullet. 

12. The fact that a high level of security is needed outside the Sugar Shack in order to mamtain order and that 



11:12 NORTH CAROLINA REGISTER September 16, 1996 1035 



CONTESTED CASE DECISIONS 



the secunty guards carry pistols and shotguns creates a reasonable fear in the residents of the Ainit)' Gardens neighborhood 
that force will be directed towards them which endangers their health and safety. 

13 The noise in the parking lots and the noise and violence in the west parking lot is directly attributable to 

patrons of the Sugar Shack The noise and violence is detrimental to the Amity Gardens neighborhood. 

1 4. No factors other than the factor set forth in Finding of Fact #6(h)(8) are at issue. 

RECOMMENDED DECISION 

In accordance with the preceding Stipulations of the parties, Fmdings of Fact and Conclusions of Law, it is hereby 
RECOMMENDED that no permanent ABC license be issued to Sugar Shack for the on-premises sale of malt beverages, 
fortified wine, unfortified wine and mixed beverages. 

ORDER 

It is hereby ordered that the agency ser\'e a copy of the final decision on the Office of Administrative Hearings, 
P.O. Drawer 27447, Raleigh, N.C. 276 II -7447, m accordance with North Carolina General Statute 150B-36(b). 

NOTICE 

The agency making the fmal decision m this contested case is required to give each partv' an opportunit}' to file 
exceptions to this recommended decision and to present wntten arguments to those m the agency who will make the fmal 
decision. G.S. 150B-36(a). 

The agencv is required by G S 150B-36(b) to serve a copy of the fmal decision on all parties and to fiimish a copv 
to the parties' attorney of record and to the Office of Admmistratne Hearings. 

The agencv that will make the fmal decision m this contested case is the North Carolma ABC Commission. 

This the 21st day of August, 1996, 



{ 



Thomas R. West 
Admmistrative Law Judge 



{ 



1036 



NORTH CAROLINA REGISTER 



September 16, 1996 



11:12 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are fUrther broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 


DEPARTMENT 


LICENSING BOARDS 


CHAPTER 


1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


F^iblic Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Jomt Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 


27 


NC State Bar 


Pastoral Counselors, Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Samtarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






TTierapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



11:12 



NORTH CAROLINA REGISTER 



September 16, 1996 



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